C. W. Mining Company

Plain-English summary

C. W. Mining faced 18 citations at its Bear Canyon coal mines, including issues involving preshift examinations, electrical grounding, and electrical equipment. Judge Richard W. Manning vacated one citation, affirmed or modified the others, and assessed penalties based on the Mine Act criteria. The final penalty was $5,875. The decision addressed separate conditions at the Bear Canyon No. 3 and No. 1 mines.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 75.360(a)(1), 75.701, 75.902, 75.512
• Outcome: One citation was vacated, the remaining citations were affirmed or modified, and total penalties of $5,875 were assessed.
• Key point: The judge evaluated each citation and penalty separately, resulting in a mixed disposition rather than a single outcome.

Full text (FMSHRC public release)

C. W. MINING COMPANY -- December 10, 2004

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1244 SPEER BOULEVARD #280

DENVER, CO 80204-3582

303-844-3577/FAX 303-844-5268

December 10, 2004

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2003-332
Petitioner : A.C. No. 42-02263-03503
:
: Bear Canyon No. 3 Mine
v. :
: Docket No. WEST 2004-148
: A.C. No. 42-01697-14546
C. W. MINING COMPANY, :
Respondent : Bear Canyon No. 1 Mine

DECISION

Appearances:  Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;
Carl F. Kingston, Esq., Salt Lake City, Utah, for Respondent.

Before:  Judge Manning

These cases are before me on two petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against C. W. Mining Company ("CW"), pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. �� 815 and 820 (the "Mine Act"). The cases involve
18 citations issued at the Bear Canyon Nos. 1 and 3 Mines in Emery County, Utah. The
Secretary proposes a total penalty of $21,150.00 in these cases. An evidentiary hearing was held
in Salt Lake City, Utah. The parties introduced testimony and documentary evidence.

I. WEST 2003-332

In August 2002, CW was in the process of developing the Bear Canyon No. 3 Mine as an
underground coal mine. This mine is very close to the Bear Canyon No. 1 Mine, which was an
operating underground coal mine. Both mines used the same surface structures, including the
office and bathhouse. Miners working for CW had driven entries about 200 feet into the
mountain. As the crew mined into the mountain, they installed a canopy along the roof for about
20 feet inby the portal. (Tr. 82). This canopy consisted of H beams installed along the ribs and
across the roof with steel plating between the beams. CW miners had been in the No. 3 portal on
August 28, 2002, working on this project. Prior to the beginning of that shift, a preshift
examination had been conducted and the date, time, and initials of the person who conducted the
exam were written on a board near the entrance of the portal (the "D, T & I board").

On August 29, 2002, Donald E. Durrant, an inspector with the Department of Labor's
Mine Safety and Health Administration ("MSHA") was at the Bear Canyon No. 1 Mine
conducting an inspection. He had been inspecting this mine for several weeks. At about 10:00
a.m., he decided to go look at the Bear Canyon No. 3 Mine. When he arrived, he observed about
eight individuals working in the vicinity of the portal. He believed that some of these individuals
were working inside the portal, including Mr. Felix Ramirez who was arc-welding metal.
Inspector Durrant noticed that the yellow plastic tape warning people to keep out of the mine was
on the ground but that the D, T & I board did not show that a preshift examination had been
performed.

The eight individuals working at the portal were employees of Advance Technical
Research and Engineering ("Advance"), an independent contractor of CW. According to Charles
Reynolds, an engineer with CW who was responsible for supervising the contract, Advance was
hired to construct a number of items at the portal including a canopy that would extend out from
the portal to protect people and equipment from any rocks that might fall down the side of the
mountain. Advance's employees were not miners and were not certified to conduct preshift
examinations. Kenneth Defa, the mine superintendent, testified that a specific CW employee had
been designated to perform any required examinations and tests at this mine.

A. Citation No. 7612553

Inspector Durrant issued Citation No. 7612553 under section 104(d)(1) of the Mine Act
alleging a violation of section 75.360(a)(1) of the Secretary's safety standards. The body of the
citation states as follows:

Eight contract miners were working in the #3 portal area doing
construction work without the mine being preshifted. The miners
entered the portal at around 9:00 AM. The miners were sent there
by Mr. Robert Putnam, but C.W. Mining Co. personnel have been
conducting the preshifts as the contractor has no certified
employees to perform the examinations. The mine operator did not
insure that the preshift was conducted prior to work being
performed in the mine.

The inspector determined that the gravity was serious, that the violation was of a significant and
substantial nature ("S&S"), and that the negligence was high. The safety standard provides, in
part, that "a certified person designated by the operator must make a preshift examination within
3 hours preceding the beginning of an 8-hour interval during which any person is scheduled to
work or travel underground." The Secretary proposes a penalty of $1,200.00 for this citation.

Inspector Durrant testified that several of the eight contract workers were inside the mine
when he arrived at the portal. Mr. Ramirez was using an arc welder to fabricate supports for the
canopy. It was obvious to the inspector that no preshift examination had been performed. CW
does not dispute that fact, but argues that the men were not inside the mine. Mr. Defa testified
that all of the work that day was being performed under the canopy that was being constructed
outby the mine portal and that the contract employees were not scheduled to work or travel
underground that day. As a consequence, CW contends that a preshift examination was not
required.

I conclude that CW violated the safety standard. Inspector Durrant credibly testified that
he observed miners working inby the underground portal. He observed that the plastic warning
tape had been torn down. In addition, whether these contract employees were underground at the
exact time the inspection party arrived is largely irrelevant. The portal was open and it is
foreseeable that the contract employees would enter the mine at some point while performing
their work. There was no demarcation under the canopy as to where the underground mine began
and the surface canopy ended. Consequently, a preshift examination was required.

I find that CW's negligence was low, however. The inspection party consisted of Durrant
and Defa. Durrant credibly testified that Defa was genuinely surprised to see contract employees
at the No. 3 Mine. Defa testified that he had no idea they were at the mine that day. Defa
subsequently checked at the mine office and discovered that the contract employees had not
checked in when they arrived at the site that day, as required by CW. Advance had been working
at the No. 3 mine off and on for about a week. In the past, CW assigned one of its own
employees to perform a preshift examination when contract employees arrived. Since Defa did
not know that Advance employees were there, no preshift examination had been performed.

Charles Reynolds, an engineer with CW, was responsible for managing the work
Advance was performing. He credibly testified that Advance was instructed to check in at the
mine office each day prior to commencing any work. He testified that Advance failed to check in
on August 29. In addition, Reynolds credibly testified that Advance was hired to perform work
on the surface and was not engaged in work underground. Reynolds stated that Advance was
constructing a canopy outside the mine portal and a housing for a fan outby the portal. As a
consequence, the Secretary did not establish that the violation was the result of CW's
unwarrantable failure to comply with the safety standard. Unwarrantable failure is defined as
aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9
FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference," or the "serious lack of reasonable
care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991). I
find that CW's conduct does not reach that level of negligence. Indeed, I find that CW's
negligence can most accurately be characterized as less than ordinary negligence. It had
procedures in place to ensure that preshift examinations were performed whenever anyone
worked in or around the No. 3 mine. Advance failed to follow these procedures on August 29.
This citation is modified to a section 104(a) citation with low negligence.

Whether the violation was S&S is a closer issue. Inspector Durrant determined that the
violation was S&S because the area had not been tested for oxygen or methane, the roof and ribs
had not been examined, and the mine fan was not operating. He believed that because the
contract workers had limited underground experience it was reasonably likely that someone
would suffer a serious injury as a result of the violation.

Mr. Defa testified that the contract employees were not working underground but were
working under a canopy outby the mine portal. He also testified that, even if they ventured inby
the portal, they would have been protected by the steel plates that were installed between the H
beams inby the portal.

A violation is classified as S&S "if based upon the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a
four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming "continued
normal mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The
question of whether a particular violation is S&S must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary must
establish: (1) the underlying violation of the safety standard; (2) a discrete safety hazard, 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. The Secretary is not required to show that it is
more probable than not that an injury will result from the violation. U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).

I find that the Secretary established that the violation was S&S. The Advance employees
were not experienced miners. Because Advance employees are not familiar with the hazards
present in a mine environment, they might easily overlook potential hazards. For example, the
CW preshift examiner would have turned on the mine fan before allowing people to work in or
around the portal to ensure that air quality met MSHA standards. The Advance employees did
not turn on the fan. A preshift examination is especially critical in this circumstance because the
qualified CW examiner would have made sure that the area was free of hazards. It is reasonably
likely that, with continued normal mining operations, one of the Advance employees would be
injured and that such injury would have been contributed to by the violation. The contract
employees could have been injured by falling rock and they could have encountered excess
methane or an oxygen deficiency. Such injuries or events would not have been likely if a CW
mining employee had performed the required preshift examination. A penalty of $200.00 is
appropriate.

B. Order No. 7612554

The inspector also issued Order No. 7612554 under section 104(d)(1) of the Mine Act
alleging a violation of section 75.1106 of the Secretary's safety standards. The body of the
citation states as follows:

Contract miners were performing arc welding on the tunnel liner in
the #3 portal without a means to detect methane. One miner
testified that they had entered the mine between 9:00 and 9:30 AM
and began the welding operations. The miner stated that they had
been welding on and off until the authorized representative arrived.
That would be between 45 and 75 minutes. They had been
assigned to work in this area by Robert Putman, their supervisor.
Mine management failed to insure that a certified individual was
present with an approved device to test for methane.

The inspector determined that the gravity was serious, that the violation was S&S, and that the
negligence was high. The safety standard provides, in part, that "[w]elding, cutting, or soldering
with an arc or flame in other than a fireproof enclosure shall be done under the supervision of a
qualified person who shall . . . , immediately before and during such operations, continuously test
for methane . . . ." The Secretary proposes a penalty of $1,600.00 for this order.

Inspector Durrant testified that he observed one Advance employee, Mr. Ramirez,
performing arc-welding in the portal and he determined that no tests had been conducted to
determine if a dangerous level of methane was present. He believes that Ramirez was about 15
to 20 feet inby the portal, at the third or fourth H beam. (Tr. 54). Durrant stated that the welding
was not occurring inside the steel canopy that was being constructed outby the portal, but was
occurring inside the mine. (Tr. 55). He testified that the standard has been interpreted to require
a methane test prior to welding and a methane test at least every 20 minutes thereafter. (Tr. 44).

Mr. Defa testified that Ramirez was welding the steel structure that was being constructed
outby the portal. He states that the steel being welded at that time was part of this structure. He
testified that CW's own miners constructed the canopy that was underground inby the portal as
they developed the entries. (Tr. 76). Advance was only contracted to construct that part of the
canopy that was outby the portal. Defa testified that Ramirez was welding just outby the portal
under the steel canopy. (Tr. 78).

Defa's testimony that Ramirez was welding on the canopy that was being constructed
outside the mine is credible because it is consistent with the work that Advance was retained to
do. Advance was not working on the steel structure underground so it is highly unlikely that
Ramirez was welding on the steel structure that was already in place underground. Ramirez was
welding two beams together on the outer canopy. The first sentence of section 75.1106 makes
clear that the standard only applies underground. It states "[a]ll welding . . . with arc or flame in
all underground areas of a coal mine shall, whenever practicable, be conducted in fireproof
enclosures." The second sentence of this standard, set forth above, modified the first sentence,
and its requirements are also limited to the underground areas of coal mines.

Inspector Durrant was very vague about where this welding was occurring in relation to
the portal. It was his belief that Ramirez was underground, but his testimony was rather weak in
this regard. It appears that he estimated distances from where he entered the outby canopy, yet he
did not know the length of the outby canopy. (Tr. 54-55). I find that the Secretary failed to
establish that the arc-welding that the inspector observed was occurring in the underground
portion of the mine. Consequently, I vacate this citation.

II. WEST 2004-148

The Bear Canyon No. 1 Mine is an underground coal mine located near the No. 3 Mine.
On July 9, 2002, Fred Marietti, an electrical inspector with MSHA, was inspecting the
underground shop at the mine. He was accompanied by Cyril Jackson, the assistant mine
foreman. Chris Grundvig, a mechanic and electrician, was in the shop at the time of the
inspection. As the inspector was looking over the shop, he became concerned that a portable
heater was not protected in the event of a ground fault because fuses rather than a circuit breaker
were present. (Tr. 97, 130). Inspector Marietti's examination of the heater led him to inspect the
electrical system in the shop. As a result of this inspection, he issued numerous citations under
section 104(a) of the Mine Act for alleged electrical violations in the shop. The Secretary
proposed the penalties for these citations under her special assessment regulations at 30 C.F.R. �
100.5. The underground shop has a concrete floor and the walls and ceiling are covered with
fire-retardant material. (Tr. 371, 428).

Power enters the mine at 12,470 volts. It is stepped down to 480 volts at the section
power center (the "transformer"or "power center"). The power center is underground and is
about 300 feet from the shop. (Tr. 357). A shielded power cable enters the shop from the
transformer through a rigid metal conduit that runs down the wall of the shop to the 100 amp
fused disconnect (the "fused disconnect"). This shielded cable contains five conductors as
follows: three power wires, two ground wires, and a pilot wire. The pilot wire is part of the
ground check system that will open the circuit breaker at the transformer in the event the circuit
loses ground protection. Because the cable could not fit into the ridged metal conduit with the
outer jacket, this outer jacket was removed when the circuit was installed. On the load side of
the fused disconnect, eight branch circuits split off through a cable tray. Two of these branch
circuits are spare circuits which were not in use and not at issue in this case. A transformer is
attached to one of the branch circuits that steps down the voltage to 110 volts and 220 volts so
that hand-operated equipment, such as drills, can be used in the shop. (Tr. 179-80). The
remaining five branch circuits are used for the following equipment: a 460 volt welder, a 460
volt grinder, a 460 volt air compressor, and two rubber-wheeled 460 volt wheel-mounted heaters.
These circuits are diagramed at Exhibit G-1, pages 2 and 3. (Tr. 105-117, 119-122).

During his inspection, Inspector Marietti opened the fused disconnect box and discovered
that the two ground wires that entered the shop through the rigid metal conduit were not attached
to the grounding lug inside the box. Instead, they were taped up with electrical tape. (Tr. 117-
18). He testified that he noticed this condition as soon as he opened the box. (Tr. 132). The
pilot wire for the ground monitor system was properly connected at the fused disconnect box.

A. Citation No. 7612350

Based on the condition he observed in the box for the fused disconnect, the inspector
issued Citation No. 7612350 under section 104(a) of the Mine Act alleging a violation of section
75.701 of MSHA's safety standards. The body of the citation states:

The 480 VAC, three phase, 100 amp fused Main Disconnect metal
enclosure that can become "alive" through failure of insulation or
by contact with energized parts shall be grounded by methods
approved by the authorized representative of the Secretary. The
enclosure was not grounded by a solid connection to the resistance
ground conductors provided by the energized power cable
supplying power to the enclosure. The two ground conductors
were taped together with insulated tape and laying in the enclosure,
not connected to a grounding lug. There were ground conductors
to six other metal enclosed electric equipment connected in the
main enclosure relying on a ground system from these resistance
ground conductors. There was some grounding provided due to
the metallic shielding on the 2/0 power cable where it had the outer
jacket removed and pulled through a rigid conduit and touching the
ground conductors through skin effect along the cable to the
transformer feeder circuit breaker. Miners touch the enclosure
parts when operating fused disconnect.

The inspector determined that the gravity was serious, that the violation was S&S, and that the
negligence was high. The safety standard provides that "[m]etalic frames, casings, and other
equipment that can become 'alive' through failure of insulation or by contact with energized
parts shall be grounded by methods approved by the authorized representative of the Secretary."
The Secretary proposes a penalty of $1,400.00 for this citation.

1. Summary of the Evidence

Inspector Marietti testified that the safety standard requires that metal frames of electric
equipment, including electrical boxes, must be properly grounded. (Tr. 136-37). He stated that
this electrical box could have become energized in the event of a fault in the circuit because the
box was not properly grounded. If the circuit were grounded at the box, the circuit breaker at the
transformer would trip in the event of a fault and the electrical box would not become energized.
The inspector testified that with the grounding wires disconnected, the grounding circuit was
open, which would not allow the current to flow back to the transformer in the event of a fault.
He stated that a "resistance ground system" is what MSHA requires under this safety standard.
(Tr. 138-39). Thus, makeshift grounding, such as through water pipes, is not approved.

The outer jacket for the cable coming into the shop from the transformer had been
stripped off when it was inserted into the rigid metal conduit. The individual wires within the
cable twist like the strands of a rope. As a consequence, the grounding wires and the metal
shielding for the cable were making contact with the rigid metal conduit. Inspector Marietti
testified that using the metal conduit and cable shielding is not an approved method of grounding
the circuit. The contact between the metal conduit and the cable shielding or the grounding
conductors may not be sufficient or effective enough to protect miners from energized equipment
if there were to be a fault.

Inspector Marietti testified that Mr. Grundvig, who performed the weekly electrical
examinations in the shop, never opened the fused disconnect box during his examinations.
Marietti said that he could see that the ground wires were not connected as soon as he opened the
box because it was obvious. He also stated that Mr. Defa told him that the condition must have
existed since the underground shop was constructed 15 years earlier. (Tr. 148). The inspector
testified that he was amazed that nobody had detected this problem in that 15-year period.
Inspector Marietti issued Imminent Danger Order No. 7612349, under section 107(a) of the
Mine Act, along with the citations at issue in this case. He also issued other citations that were
not contested by CW. Inspector Marietti determined that it was highly likely that an accident
would occur. (Tr. 149). He determined that the violation should be designated as S&S because,
based on the type of work being done in the shop, it was reasonably likely that someone would be
seriously injured as a result of the violation. (Tr. 142-49).

During an MSHA health and safety conference with CW on June 12, 2003, the gravity of
the citation was lowered with the following language:

There was grounding provided through cable shielding and the
rigid conduit. Tests indicated that the system was grounded.
However, this is not an acceptable ground because this condition
has the potential of failure. The gravity is reduced to reasonably
likely.

Cyril Jackson accompanied Inspector Marietti on the inspection of the shop. He testified
that when the fused disconnect box was opened, he had to pull the ground wires out from behind
other cables to see that the ends were not connected to the grounding lug. (Tr. 329). He states
that only then did the inspection party realize that the ends of the ground wires were taped up.
Mr. Grundvig testified that the ends of the ground wires were not visible until they were pulled
out from behind other components in the box. (Tr. 379). At that point, the inspector wanted to
find out why the breaker at the power center had not tripped. Marietti declared that this
condition created an imminent danger so they went to the transformer and turned off the power.

According to CW's witnesses when the power was turned back on, the circuit breaker
stayed set, in the closed position. Jackson testified that Marietti began to troubleshoot by
unplugging the cable coupler at the transformer and examined the plug, which was not shorted.
The inspector then tested the circuit breaker. First, he tested the breaker with the plug out and it
would not set. Next, Marietti plugged the cable coupler back in, set the circuit breaker and it
remained set. When he pulled the plug out, the circuit breaker tripped. The prong on the plug
for the pilot wire is the shortest so that it will disconnect first, and the prong for the ground is the
longest. (Tr. 372). The breaker should trip as soon as the prong for the pilot wire disengages.

Jackson testified that they all went to the office, where Kenny Defa asked whether the
breaker tripped when the pilot wire was disconnected at the fused disconnect box. The circuit for
the shop was equipped with a ground monitoring system which is designed to detect a problem in
a circuit's grounding system. Low voltage power travels from the transformer to the fused
disconnect box through the pilot wire. Ordinarily, this power would travel back to the
transformer via the grounding wires. If the grounding wires are disconnected, the ground
monitoring system will detect this break in the grounding circuit and the circuit breaker will trip.
The ground monitoring system did not trip the circuit breaker in this instance even though the
ground wires were not connected at the grounding lug on the fused disconnect box. The reason
why the circuit breaker did not trip is contested by the parties. Inspector Marietti testified that, in
this instance, the ground wire and the pilot wire were touching on the cable coupler (plug) at the
transformer. (Tr. 153-54). Thus, the ground monitoring circuit was short-circuited where the
cable was attached to the transformer at the cable coupler. CW disagrees with this assessment.

After their discussion with Defa, Marietti, Grundvig, and Jackson went back to the shop
to test the circuit with a meter to determine if it was grounded. The meter showed that the circuit
was grounded. (Tr. 331, 357, 385). They observed that the pilot wire was properly connected at
the fused disconnect box. Jackson testified that when the pilot wire was disconnected from the
lug on the box, the circuit breaker tripped. (Tr. 333). Jackson testified that he is absolutely
certain that when the pilot wire was disconnected at the fused disconnect box, the circuit breaker
tripped to an open position. (Tr. 355). Grundvig testified that the power went off in the shop
when the pilot wire was lifted from the box. (Tr. 382-83, 393). When Grundvig went to the
breaker to try to reset it, it would not set because the pilot wire had been disconnected. (Tr. 383).
When the pilot wire was reconnected to the box, the circuit breaker set properly. Mr. Defa
testified that he was told that the breaker tripped when the pilot wire was lifted from its bracket
on the fused disconnect box. (Tr. 432-33).

Jackson further testified that when the power cable entering the shop was installed, the
outer jacket was removed where it passed through the metal conduit. The shielding and the two
grounding wires made contact with the metal conduit. (Tr. 336, 385). The cable was very tight
inside the metal conduit. (Tr. 356). The metal conduit was screwed into a metal plate which was
bolted to the top of the fused disconnect box. (Tr. 337). As a consequence, when Inspector
Marietti used a meter to test the ground, the meter showed that the circuit was grounded, even
though the grounding wires were not connected at the fused disconnect box in the shop. Jackson
concluded that, although this installation did not comply with the safety standard, the circuits in
the shop were effectively grounded. Mr. Jackson, who has been certified through the College of
Eastern Utah as a mine electrician, testified that the violation did not present a hazard to miners.
(Tr. 340). Mr. Grundvig testified that because the metal conduit was about four feet long with an
elbow, good contact had been established between the uninsulated grounding wires and the
conduit. (Tr. 392).

Jackson testified that the shop was constructed about 15 years ago and the electrical
system had not been changed since that time. He also stated that CW had not experienced any
ground faults or electrical injuries in the shop since the shop was constructed. Jackson also
stated that MSHA inspectors had inspected the shop in the past and no citations had been issued
concerning the manner in which the electrical system was wired or grounded. (Tr. 339).

Mr. Jackson further testified that he met with MSHA officials in Price, Utah, including
Inspector Marietti, to discuss the electrical citations. When Marietti mentioned that the pilot wire
was shorted at the cable coupler (plug) at the power center for the shop, Jackson "reminded him"
that a plug for a different circuit at the power center was shorted out, not the plug that controlled
the circuit for the shop. (Tr. 355). Jackson also reminded him that he issued a citation for that
condition. Jackson testified that Inspector Marietti replied that it was possible that he was
confused about which plug at the power center had a problem. Grundvig and Defa testified
similarly. (Tr. 411-12, 435). Jackson testified that he is absolutely certain that the plug at the
power center for the shop was correctly wired and was not shorted out in any way. (Tr. 355-56,
362). Grundvig also testified that when the plug was examined by the inspection party, there was
nothing wrong with it. (Tr. 384). Grundvig testified that another plug at that same transformer
was "messed up pretty bad," but it was not the plug for the shop. (Tr. 412). Jackson further
stated that Inspector Marietti would have written a citation for the faulty plug if, in fact, it was
not correctly wired. On rebuttal, Inspector Marietti testified that he was not at that meeting in
Price and that, although other plugs were also poorly wired at the transformer, he remembers that
the shielding for the cable to the shop was touching the pilot wire in the plug for the shop and
that he immediately corrected the problem. (Tr. 455-457).

Arnold Pratt, a consulting professional electrical engineer, testified for CW. He testified
that, although the cited condition violated the standard, the violation did not create a safety
hazard. He reached this conclusion based on the fact that the bare shield on the power conductor
entering the shop made a tight connection with the metal conduit through which it passed. (Tr.
245, 248; Ex. R-1). He believes that this condition existed since the shop was built. As a
consequence, the cable was adequately grounded. This fact is supported by the grounding test
that was performed which showed that there was a "good low resistance connection between the
. . . shield on the power conductor and the conduit." Id. He believes that the shielding had
enough "ampacity" to adequately ground the circuit. (Tr. 299-300, 318-19). He stated that his
conclusion is supported by the fact that this condition had existed for at least 15 years without
incident. (Tr. 249). Electrical tests would not have revealed the problem because grounding was
provided through the conduit. Pratt contends that if, at any time during this 15-year period,
grounding through the conduit had failed, the breaker would have tripped and the problem would
have been detected during troubleshooting.

2. Analysis

As discussed above, the parties do not dispute that the cited condition violated section
75.701. The ground wires from the power center were not connected to the grounding lug on the
fused disconnect box. CW contends that the violation was neither serious nor S&S. The
Secretary contends that it was reasonably likely that someone would be seriously injured by the
cited condition. For the reasons discussed below, I find that the violation was somewhat serious
but that it was not S&S.

Inspector Marietti is a highly qualified and experienced electrical inspector. Witnesses
for CW testified that he has been very helpful in suggesting improvements to the electrical
systems at the mine. He provided instruction on installing proper electrical installations to abate
the citations he issued. Much of the testimony and evidence presented by the Secretary was very
technical in nature. I have only briefly summarized the evidence presented and I have not
discussed all of the conflicts in the evidence because I do not believe that it is necessary to do so.
Whether the pilot wire was shorted out at the plug at the power center is largely irrelevant. I find
that Inspector Marietti discovered that the cable shielding was not connected to the plug at the
transformer in a proper manner. As a consequence, some of the thin stray wires of the shielding
were touching the pilot wire. (Tr. 455-457). Thus, the ground monitoring system was short
circuited. I find that Marietti removed the stray shielding wires from the pilot wire before the
troubleshooting described by Jackson began. Once the faulty condition in the plug was
corrected, the ground monitoring system still did not trip the circuit breaker because the ground
wires were connected to the fused disconnect box via the metal conduit. Because this conduit
was connected to the fused disconnect box, the power in the ground monitoring circuit could
travel back to the transformer through the grounding wires in the cable via the metal conduit. I
credit the testimony of Jackson and Grundvig concerning the results of troubleshooting that
occurred after Inspector Marietti fixed the plug. When Marietti tested the ground, his meter
showed the fused disconnect box was grounded.

I find that the Secretary did not establish that the violation was S&S. The fused
disconnect box was effectively grounded through the metal conduit. I credit the testimony of
Jackson that the cable was snug within the conduit. The bare ground wires and the shielding for
the cable were in direct contact with the conduit. Given that this condition had existed for about
15 years without incident, it is highly unlikely that the ground would have failed assuming
continued normal mining operations. Although this connection violated the safety standard, I
find that there was not a reasonable likelihood that the hazard contributed to by the violation
would result in an injury. If the conduit became loose from the fused disconnect box, Mr.
Grundvig would have detected that condition during his normal examinations in the shop. There
was a slight safety hazard, however, because the grounding connection in the metal conduit could
deteriorate over time.

I find that the violation was the result of CW's high negligence. The ends of the ground
wires were not attached to the lugs in the fused disconnect box and these ends were taped up. The
failure to connect the ends of the ground wires when the box was initially installed demonstrates
a high degree of negligence. It should have been obvious to the miner installing the box that the
ground wires were taped up and that they needed to be connected to the grounding lug. CW
argues that, because the system was grounded through the conduit, the violation was never
detected and its failure to detect the violation demonstrates low negligence. I base my negligence
finding on the failure to properly wire the box when it was installed. A penalty of $800.00 is
appropriate for this violation.

B. Other Citations under Section 75.701

Inspector Marietti issued six other citations under section 75.701. The citations related to
each of the active branch circuits. For example, Citation No. 7612352 states, in part:

The 480 VAC, three phase, 5 HP, 7 amp bench grinder metal
enclosure that can become 'alive' through failure of insulation or
by contact with energized parts shall be grounded by methods
approved by the authorized representative of the Secretary. The
enclosure was not grounded to a solid connection to the resistance
ground conductors provided by the energized power cable
supplying power to the 100 amp Main Disconnect enclosure. The
ground conductors were taped together with insulated tape and
laying in the enclosure, not connected to a grounding lug. The
grinder ground conductor was connected in the main enclosure
relying on the ground system from these resistance ground
conductors that were not solidly connected providing a mechanical
and electrically efficient connection. There was some grounding
provided due to the metallic shielding on the 2/0 power cable
where it had the outer jacket removed and pulled down through a
rigid conduit and touching the ground conductors through skin
effect along the cable to the transformer feeder circuit breaker.
There was rigid metal conduit to the grinder from the main
disconnect . . . . Miners touch the enclosures when working with
equipment.

This citation is merely stating that, although a grounding wire connected the grinder to the fused
disconnect box, the ground wires from the transformer were not connected at that box, so the
grinder circuit was not properly grounded with resistance ground conductors. (Tr. 155).
Inspector Marietti issued similar citations for each piece of electrical equipment in the shop.
(Citation Nos. 7612351 - 7612356) (Tr. 160-82). None of these citations would have been issued
if the grounding wires had been attached to the lug in the fused disconnect box. In each instance,
the gravity was lowered on June 26, 2003, following a safety and health conference. The
citations were designated as S&S and CW's negligence was listed as high. Inspector Marietti
testified that the violative conditions and the hazards presented were the same for each piece of
equipment (Tr. 177-78). The Secretary proposes a penalty of $1,400.00 for each citation.

Mr. Jackson testified that all of these citations relate back to the fact that the ground wires
were not connected to the fused disconnect box. For the same reasons as discussed above, he
does not believe that these conditions created a hazard. As stated above, no miner had ever been
shocked as a result of the conditions described in the citations. He believes that these citations
repeat the same condition for each piece of equipment in the shop. Mr. Grundvig's testimony
supports Jackson's testimony. (Tr. 393-98).

Mr. Pratt testified that the ground connection between the welder, grinder, and the other
equipment in the shop was properly made to the fused disconnect. (Tr. 250-55). It was the fused
disconnect that was not properly grounded as set forth in Citation No. 7612350. The system was
grounded because the fused disconnect was grounded through the metal conduit. Thus, no
hazard was presented by the conditions described in these citations. In addition, because there
were ground wires running from the fused disconnect to each piece of equipment on these branch
circuits, there was no separate violation for each branch circuit. The only violation was at the
fused disconnect where the grounding wire from the power center was not attached at the
grounding lug.

The first issue presented by these citations is whether they are unlawfully duplicative.
The Commission has addressed this issue in cases where the Secretary has issued several
citations under different safety standards for the same condition. The Commission held that
"citations are not duplicative as long as the standards involved impose separate and distinct
duties on an operator." Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003 (June 1997) (citations
omitted). All six of these citations were abated when CW abated Citation No. 7612350.
Inspector Marietti issued a separate citation for each piece of electrical equipment in the shop.
Each piece of equipment was properly grounded to the fused disconnect box, but the fused
disconnect box was not properly grounded to the transformer, as discussed above. All of these
citations relate back to the violation in Citation No. 7612350. Nevertheless, I find that it was
within the Secretary's enforcement discretion to issue a separate citation for each piece of
equipment because each piece of equipment was not properly grounded back to the transformer.
Grounding back to the transformer is necessary in order for the circuit breaker to trip. A fault at
the bench grinder, for example, could injure a miner using the bench grinder because of the lack
of grounding to the transformer.

My findings with respect to negligence, gravity, and S&S are the same for these citations
as for Citation No. 7612350. The equipment was, in fact, grounded because of the way the
power cable entered the shop through the fixed metal conduit. As a consequence the violations
were not S&S and were not particularly serious. CW's negligence was high. Because the
violative condition was fully addressed in Citation No. 7612350 and each citation only affected
one piece of equipment, I find that a penalty of $200.00 for each citation is appropriate for these
violations. I find that a cumulative penalty of $2,000 for the violations of section 75.701 is
appropriate.

C. Citation No. 7612358

Inspector Marietti issued Citation No. 7612358 under section 104(a) of the Mine Act
alleging a violation of section 75.902 of MSHA's safety standards. The body of the citation
states:

The 480 VAC, three phase, 55 amp welder and fused disconnect
metal enclosures were not provided with a fail safe ground check
circuit to monitor continuously the resistance ground system circuit
to assure continuity which ground check circuit shall cause the
circuit breaker to open when either the ground or pilot check is
broken. The pilot conductor from the feeder circuit breaker at the
transformer supplying power to the main enclosure from the
resistance grounded system was connected in parallel to six other
circuits in use and two others that had the load cables removed but
the pilot conductors were still hanging open in the fused disconnect
enclosures. These circuit grounds and pilot conductors were in
parallel and if a ground opened as in the one fused disconnect that
was removed from the ground check circuit that was opened, it
would not open the circuit breaker. The parallel circuitry would
require that all the individual grounds would have to be open to
open the feeder circuit breaker. This would create a hazard to the
miners for no resistance ground protection if the enclosure became
alive from a fault. Miners touch the enclosed parts when operating
the fused disconnect.

The inspector determined that the gravity was serious, that the violation was S&S, and that the
negligence was high. The safety standard provides, in pertinent part, that "[l]ow and medium-
voltage resistance grounded systems shall include a fail-safe ground check circuit to monitor
continuously the grounding circuit to assure continuity which ground check circuit shall cause the
circuit breaker to open when either the ground or pilot check wire is broken . . . ." The Secretary
proposes a penalty of $325.00 for this citation.

Pilot wires, which make up part of the ground check monitoring system, carry low
voltage current. As described above, this current flows through the pilot wires to the equipment,
then back through the grounding wires to the circuit monitor. (Tr. 185-86). If the low voltage
power in this ground monitoring circuit is interrupted for any reason, the circuit breaker for the
circuit supplying power to the equipment is opened, thereby de-energizing the power. The power
in the ground monitoring circuit can be interrupted if the ground wire is broken or the pilot wire
is broken. The citation states that the pilot wires to the welder and the other equipment in the
shop were incorrectly installed. As installed, the grounding system for each piece of equipment
in the shop would have to fail before the circuit breaker would open. For example, if the ground
wire going from the fused disconnect to the welder were to break or fail, the ground check
monitoring system would not detect this failure.

An easy way to visualize the issue is to think of the two types of Christmas tree lights.
Most lights are now wired in parallel so that if one light fails, the entire string of lights does not
go out. Older Christmas tree light strings were wired in series with the result that if one light
burned out, the entire string of lights went out. In the case of this ground check monitoring
system, the pilot wires should have been wired in series so that if there were to be a problem
anywhere in the system, the circuit breaker would to cut the power. The citation alleges that the
ground check monitoring system was not fail-safe because the circuit breaker would not open in
the event the pilot wire or ground wire for the welder broke.

Inspector Marietti determined that the negligence was high because CW should have done
a better job of making sure that the electrical system in the shop was installed in accordance with
the requirements of the standard. (Tr. 190-91). During an MSHA health and safety conference
with CW on June 12, 2003, the gravity of the citation was lowered with the following language:

A ground circuit, between the 100 amp disconnect and the
stationary electrical equipment, was provided by a properly
connected internal conductor and by rigid metal conduit attached to
the frames. Tests indicated that the system was grounded.
However, because the ground monitor circuits were wired in
parallel . . . , the monitor would not open if one ground circuit lost
continuity. The condition is violative but not reasonably likely to
cause an accident resulting in injury. The citation gravity was
reduced to non-S&S.

Mr. Jackson agrees that the pilot wire was not properly installed. (Tr. 345). He does not
believe that this condition created a hazard. This condition had existed since the shop was
constructed without creating any problems. Mr. Grundvig also confirmed that the pilot wires to
the equipment were not wired correctly. (Tr. 378-79, 398).

Mr. Pratt testified that this condition violated the safety standard but it did not present a
hazard. (Tr. 255-56; Ex. R-1). A hazard was not present because the pilot wire had a good
connection to all of the circuits and therefore also acted as a ground wire by itself. Thus, if the
grounding system ceased to function, the pilot wires would provide adequate ground. (Tr. 257-
58). The pilot wire had a sufficient ampacity to act as a ground wire. Thus, two grounding
systems would have to be broken in order for a hazard to be presented by the violation.

The parties do not dispute that this citation should be affirmed. The Secretary modified
the citation during a conference. I find that the gravity was somewhat serious and that it was not
S&S. I accept the evidence presented by CW that the violation did not present a significant
safety hazard. CW's negligence was high when it improperly installed the electrical system in
the shop. I find that a penalty of $150.00 is appropriate for this violation.

D. Other Citations under Section 75.902

Inspector Marietti issued a total of six citations under this standard, one for each of the
six active branch circuits in the underground shop. (Citation Nos. 7612358, 7612359, 7612360,
7612421, 7612422, 7612423) (Tr. 191-202). Each citation contains the same allegations with
respect to each separate piece of equipment in the shop. At the MSHA conference, three of the
citations were modified to non-S&S citations and the gravity of the heater citations was reduced.
It should be noted, that when CW abated the citations at issue in this case, it completely
redesigned the electrical circuits in the shop. With respect to the ground check monitoring
system, it installed a separate ground monitor for each branch circuit so that if there were a
failure in the resistance ground circuit for the welder, for example, it would shut down the power
to the welder. As a consequence, the pilot wires were not connected in series because it installed
a separate and an independent ground monitoring system for each branch circuit. (Tr. 197-98).

Mr. Jackson testified that the conditions cited in these citations were identical to the
conditions cited in the previous citation. Grundvig agrees. (Tr. 400-05). Mr. Pratt testified that
the conditions described in these citations would not present any hazard for the same reasons as
described above. (Tr. 259-62). I find that each citation presented a discrete safety hazard with
respect to the specific piece of equipment listed. Consequently, I find that the citations are not
duplicative. I also find that the violations were somewhat serious and that CW's negligence was
high. I find that a penalty of $150.00 for each citation is appropriate for these violations. I find
that a cumulative penalty of $900.00 for the violations of section 75.902 is appropriate.

E. Citation No. 7612424

Inspector Marietti issued Citation No. 7612424 under section 104(a) of the Mine Act
alleging a violation of section 75.601 of MSHA's safety standards. The body of the citation
states, in part:

The 480 VAC, three phase, No. 1 and No. 2 portable wheeled floor
heaters trailing cables were not provided with a circuit breaker with
instantaneous short circuit protection as required. The No. 1 with
an AWG 8/5 trailing cable was protected with a 20 amp fuse. No.
2 with an AWG 10/5 trailing cable was protected with a 10 amp
fuse. The cables get strung out on the floor in the shop with heavy
metal and materials being moved and used that can damage the
trailing cables.

The inspector determined that the gravity was serious, that the violation was S&S, and that the
negligence was high. The safety standard provides, in pertinent part, that "[s]hort circuit
protection for trailing cables shall be provided by an automatic circuit breaker or other no less
effective device approved by the Secretary of adequate current-interrupting capacity in each
ungrounded conductor." The Secretary proposes a penalty of $450.00 for this citation.

During an MSHA health and safety conference with CW on June 12, 2003, the gravity of
the citation was lowered with the following language:

Although not provided with circuit breakers, the trailing cables for
the portable shop heaters were protected by correctly sized fuses.
Also, the circuits were protected by the circuit breaker at the power
center. The condition described in the citation is not likely to
cause an accident resulting in serious injury. The citation gravity
was reduced to non-S&S.

Inspector Marietti determined that the heaters were portable equipment so that the power
cables were trailing cables within the meaning of the safety standard. (Tr. 203). Section 75.601
requires all trailing cables be protected with an automatic circuit breaker that provides
instantaneous short circuit protection. Inspector Marietti testified that trailing cables are required
to be protected because they are subject to damage while being pulled around. (Tr. 205). The
cables for the heaters were protected by fuses. Fuses do not meet the requirement of the standard
because they do not provide instantaneous protection. A fuse will provide some degree of
protection, but it will not automatically open the electrical circuit when a fault occurs.
(Tr. 206). A fuse will only open a circuit after a period of time based on the design specifications
of the fuse. Inspector Marietti does not know the amount of time it would take before these
particular fuses would open the circuit in the event of a fault. (Tr. 233). The inspector testified
that, in the alternative, CW could have relied on the circuit breaker at the power center for the
shop, since the cables for the heaters were simply branch circuits of the shop circuit. To be
effective, however, the circuit breaker would have to be set at 150 amps magnetic to provide the
degree of protection required by the standard. (Tr. 208). In this case, the potentiometer at the
circuit breaker for the shop was set at the maximum number of amps, which was considerably
above 150 amps. (Tr. 168-70, 208-09). As a consequence, the circuit breaker would not trip in
the event of a fault in the cables for the heaters.

Mr. Jackson testified that the fuses were installed when the shop was constructed. (Tr.
350). He stated that this condition has never created any problems. He does not believe that this
condition created a shock hazard. He believes that the fuses used did not have delay and, if they
did, it would not be enough to notice. (Tr. 351). Grundvig admitted that fuses would not
disconnect all phases at once since each phase has a separate fuse. (Tr. 405).

Mr. Pratt testified that the condition violated the safety standard but that no safety hazard
was presented. (Tr. 262). He based this conclusion on the fact that the circuit breaker at the
power center would adequately protect the circuit. In addition, he testified that it takes a fuse
only a hundredth of a second longer to blow than a circuit breaker to open a circuit. (Tr. 264).

I find that the Secretary established a violation of the safety standard. The citation was
modified to a non-S&S citation at the MSHA conference. I find that, because the potentiometer
at the circuit breaker was out of adjustment, the circuit breaker might not provide adequate
protection. The potentiometer adjusts the sensitivity of the circuit breaker. I credit the testimony
of Inspector Marietti on this issue. I find that the citation was moderately serious. I also find that
CW's negligence was high because it improperly installed fuses rather than circuit breakers in the
two heater branch circuits. This violation was obvious. The Secretary's proposed penalty of
$450.00 is appropriate for this violation.

F. Citation No. 7612425

Inspector Marietti issued Citation No. 7612425 under section 104(a) of the Mine Act
alleging a violation of section 75.900 of MSHA's safety standards. The body of the citation
states, in part:

The energized 480 VAC, three phase circuits for the welder, bench
grinder, air compressor, No. 1 and No. 2 portable wheeled floor
heaters and 5 KVA transformer were not provided with a circuit
breaker to provide undervoltage, grounded phase, short circuit and
overcurrent [protection]. They were provided with fused
disconnects.

The inspector determined that the gravity was serious, that the violation was S&S, and that the
negligence was high. The safety standard provides, in part, that "[l]ow- and medium-voltage
power circuits serving three-phase alternating current equipment shall be protected by suitable
circuit breakers of adequate interrupting capacity . . . ." The Secretary proposes a penalty of
$325.00 for this citation.

During an MSHA health and safety conference with CW on June 12, 2003, the gravity of
the citation was lowered with the following language:

Although not provided with separate circuit breakers, the circuits
were protected by correctly sized fuses. Also, the circuits were
protected by the circuit breaker at the power center. The condition
described in the citation is not likely to cause an accident resulting
in serious injury. The citation gravity was reduced to non-S&S.

Inspector Marietti testified that the branch power circuits in the shop were low voltage
and were covered by the standard. These circuits were protected by fuses rather than circuit
breakers. Section 75.900 goes on to state that the required circuit breakers "shall be equipped
with devices to provide protection against undervoltage, ground phase, short circuit, and
overcurrent." The inspector testified that fuses cannot provide undervoltage and ground fault
protection. (Tr. 212). He further stated that the circuit breaker at the power center could have
provided the necessary protection if it were properly adjusted. In this case, however, the
potentiometer was "set all the way up and the ground fault wasn't working." (Tr. 212).

Jackson testified that if a fuse blew out one of the phases, the motors would stop and
hum. (Tr. 352). The motor might get a little hot, but the condition would likely trip the circuit
breaker at the power center. He does not believe that the conditions described in this citation
posed a hazard to miners. Grundvig testified that he had never opened the fuse boxes, so he did
not know what type of fuses was used. (Tr. 407). He believes that if there had been a fault of
any kind, the breaker at the power center would have tripped.

Mr. Pratt testified that there was some protection provided by the circuit breaker at the
power center. (Tr. 264). If you had a short circuit in one of these pieces of equipment, there
might not be enough current to trip the circuit breaker, but a fuse would blow. He did not see a
danger presented in the conditions set forth in the citation. He admitted, however, that when a
fuse blows, only one phase may be opened with the result that equipment could have current
running through it. (Tr. 265). Because most people are used to circuit breakers, which cut off all
power when tripped, they may troubleshoot equipment without knowing that it is still hot.

I find that the Secretary established a violation. The citation was modified to a non-S&S
citation at the MSHA conference. I find that, because the potentiometer at the circuit breaker
was out of adjustment, the circuit breaker might not provide adequate protection. I credit the
testimony of Inspector Marietti on this issue. I find that the citation was moderately serious. I
also find that CW's negligence was high because it improperly installed fuses rather than circuit
breakers in these circuits. This violation was obvious. The Secretary's proposed penalty of
$325.00 is appropriate for this violation.

G. Citation No. 7612426

Inspector Marietti issued Citation No. 7612426 under section 104(a) of the Mine Act
alleging a violation of section 75.512 of MSHA's safety standards. The body of the citation
states, in part:

The welder fused disconnect, 480 VAC three phase rated at 480 for
30 amp fuses maximum was provided with two 60 amp fuses and
one 50 amp fuse. The physical size is bigger around than a 30 amp
and the holders were spread open to the point that the holder was
not making adequate contact with the fuse. The A phase had been
forced in breaking the insulated load side fuse holder. The holder
was not bolted to the enclosure. The bench grinder fused
disconnect was rated for 15 amp fuses at 480 VAC, there were 30
amp fuses installed. These two enclosures were not being
maintained in safe operating condition. This with all the [other]
violations . . . contribute to an inadequate weekly electrical
examination. The examination was conducted on 07/02 and
previous weeks. The individual equipment was not identified . . .
in the book provided. The examiner said, "I look to see if covers
are on and any cables are cut, I have not checked inside the panels
or for anything else."

The inspector determined that the gravity was serious, that the violation was S&S, and that the
negligence was high. The safety standard provides, in part, that "[a]ll electric shall be frequently
examined, tested, and properly maintained by a qualified person to assure safe operating
conditions." The standard also provides that when a potentially dangerous condition is found,
the equipment shall be removed from service and a record of electrical examinations must be
kept. The Secretary proposes a penalty of $2,000.00 for this citation.

Inspector Marietti testified that he issued this citation based on all of the other electrical
citations he issued in the underground shop. Marietti stated that the person who most recently
performed the weekly electrical examinations, Mr. Grundvig, told him that he was never taught
how to perform electrical examinations. (Tr. 213). The inspector testified that Mr. Grundvig
told him that he never opened electrical boxes to examine the fuses or other components.
Grundvig simply made sure that the covers for electrical boxes were closed and that electrical
cables entering the boxes were not damaged. Marietti testified that such a cursory examination is
inadequate under the standard. (Tr. 218). Many of the fuses inside the electrical boxes were of
an incorrect size. For example, the fused disconnect for the welder had a rating of 30 amps, but
CW used 50 and 60 amp fuses. The holder for the 50 amp fuse had to be spread out to such an
extent that it was not longer providing adequate electrical contact. (Tr. 215). Inspector Marietti
testified that if an electrical examiner had opened the cover for the fuse box, the condition would
have been obvious. He further stated that he issued 78 electrical citations and 7 electrical orders
of withdrawal during his inspection of the mine. (Tr. 220). The inspector testified that, although
he had previously conducted electrical inspections at the mine, he had never inspected the
underground shop. (Tr. 223). Marietti did not know if the shop had been subject to any
comprehensive MSHA electrical inspections in the past 15 years.

Inspector Marietti testified that the violation was serious and S&S, because if these
conditions were allowed to continue, it was highly likely that someone would be seriously
injured. CW was highly negligent because the examinations were totally inadequate to comply
with the requirements of the safety standard.

Mr. Grundvig testified that he performed a general safety inspection of the shop every
week. (Tr. 386). He examined each piece of equipment in the shop for safety defects. He
looked for slip and fall hazards, fire hazards, and he checked the ventilation. He testified that he
did not open electrical boxes because CW had never experienced any electrical problems in the
shop. (Tr. 387, 409). Grundvig testified that other MSHA inspectors looked at his examination
books without advising him that his examinations were insufficient. (Tr. 410).

Mr. Pratt testified that this condition "was really scary" when he first heard about it. (Tr.
266). He was concerned about using a 30 amp disconnect with 60 amp fuses. As a consequence,
he performed an experiment using the same types of fuses. (Tr. 266-76). As a result of this
experiment, he concluded that the condition did not present a real hazard. (Tr. 278). There was
enough contact between the fuse and the bent fuse holder to provide adequate protection. He
admitted that he did not consider other aspects of concern to Inspector Marietti.

I find that the Secretary established a violation of the safety standard. I also find that the
violation was S&S. The weekly examinations that were being conducted in the shop were
completely inadequate to discover latent safety defects. CW's failure to conduct competent
electrical examinations created a reasonable likelihood that the hazard contributed to will result
in an injury of a reasonably serious nature. I also find that CW's negligence was high. This
violation was obvious. Inspector Marietti discovered numerous violations during his inspection.
The fact that other MSHA inspectors may have been in the shop does not reduce CW's
negligence. It is the duty of the mine operator to comply with safety standards. In addition, it is
not clear whether an MSHA electrical inspector had ever conducted an electrical inspection of
the underground shop. CW argues that, because it had not experienced any problems with the
shop's electrical system, it was not remiss in failing to conduct more thorough examinations.
The purpose of electrical examinations is to make sure that problems do not arise. Waiting for a
problem to develop before performing adequate examinations for potential hazards creates a
serious risk that someone will be killed or injured. The Secretary's proposed penalty of
$2,000.00 is appropriate for this violation.

III. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The record shows that CW has a history of about 55 violations at the
Bear Canyon No. 1 Mine and no violations at the Bear Canyon No. 3 mine in the two years prior
to the inspections. Bear Canyon No. 1 Mine produced about 952,000 tons of coal in 2002 and
Bear Canyon No. 3 produced about 3,500 tons of coal in 2002. All of the citations were abated
in good faith. The gravity and negligence findings are discussed above. The penalties assessed
in this decision will not have an adverse effect on CW's ability to continue in business. Based on
the penalty criteria, I find that the penalties set forth below are appropriate.

IV. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. � 820(i), I assess the
following civil penalties:

Citation No. 30 C.F.R. � Penalty

WEST 2003-332

7612553 75.360(a)(1) $200.00
7612544 75.1106 Vacated

Citation No. 30 C.F.R. � Penalty

WEST 2004-148

7612350 75.701 800.00
7612351 75.701 200.00
7612352 75.701 200.00
7612353 75.701 200.00
7612354 75.701 200.00
7612355 75.701 200.00
7612356 75.701 200.00
7612358 75.902 150.00
7612359 75.902 150.00
7612360 75.902 150.00
7612421 75.902 150.00
7612422 75.902 150.00
7612423 75.902 150.00
7612424 75.601 450.00
7612425 75.900 325.00
7612426 75.512 2,000.00

TOTAL PENALTY $5,875.00

For the reasons set forth above, Citation No. 7612544 is VACATED; the other citations
are AFFIRMED or MODIFIED as set forth in this decision; and C.W. Mining Company is
ORDERED TO PAY the Secretary of Labor the sum of $5,875.00 within 30 days of the date of
this decision.

Richard W. Manning

Administrative Law Judge

Distribution:

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)

Carl E. Kingston, Esq., 3212 South State Street, Salt Lake City, UT 84115-3882 (Certified Mail)

RWM