Secretary of Labor (MSHA) v. Climax Molybdenum Company (ALJ decision, July 25, 1980)

Plain-English summary

The Secretary sought penalties for electrical citations at Climax Molybdenum Company's mill. Judge John J. Morris vacated a citation concerning a motor without a junction box because the insulated, grounded motor was not shown to be dangerous. He vacated two citations concerning uninsulated bus bars because their height provided protection by location under the cited standard. He also granted the Secretary's motion to vacate two other citations. The order vacated all five citations in the two dockets and assessed no penalties.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.12-30 and 57.12-23.
• Outcome: Citations 329188, 329190, 329191, 331894, and 331868 vacated; no penalties assessed.
• Key point: The judge found no potentially dangerous motor condition and treated bus bars more than eight feet above the floor as protected by location.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

333 W. COLFAX AVENUE
DENVER, COLORADO 80204

25 JUL 1980

SECRETARY OF LABOR, MINE SAFETY AND ) CIVIL PENALTY PROCEEDING HEALTH ADMINISTRATION (MSHA), ) Petitioner, ) DOCKET NO. WEST 79-303-M
v. ) MSHA CASE NO. 05-02337-05007
) DOCKET NO. WEST 79-304-M
CLIMAX MOLYBDENUM COMPANY, ) MSHA CASE NO. 05-02337-05008 Respondent. ) MINE: CLIMAX MILL

DECISION

APPEARANCES:
Robert Bass, Esq., and Eliehue Brunson, Esq., Office of T. A. Housh, Regional Solicitor, United States Department of Labor, Kansas City, Missouri for the Petitioner,

Richard W. Manning, Esq., Climax Molybdenum Company, Golden, Colorado for the Respondent.

Before: Judge John J. Morris

WEST 79-303-M

Citation 329190

Petitioner, the Secretary of Labor, on behalf of the Mine Safety and Health Administration, charges respondent, Climax Molybdenum Company, failed to guard electrical equipment. MSHA asserts that Climax thereby violated 30 C.F.R. 51.12-30, 1/ a regulation promulgated under the statutory authority of the Federal Mine Safety and Health Act of 1969 (amended 1977), 30 U.S.C. § 801 et seq.

1/ The cited standard provides as follows:

57.12-30 Mandatory. When a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized.

1918

ISSUE
The issue is whether Climax violated the regulations.

FACTS

The evidence is uncontroverted. I find the following facts to be credible.

1. During an inspection the MSHA inspector observed insulated
   electrical wires leading from a motor (Tr 6, 10, 26).

2. The motor, which was cited for the violation of the standard,
   lacked a junction box with a bushing. It was one of 5 motors on the premises (Tr 6).

3. The inspector was of the opinion that motor vibration could work
   the wires loose (Tr 8).

4. The Climax electrical foreman indicated this.900 r.p.m. motor had
   been in use in the mid 1920s (Tr 23).

5. The motor has a ground wire attached to the frame (Tr 12).

6. The wires are insulated and there was neither a shock hazard nor a
   dangerous condition (Tr 19, 24, 25).

7. Climax's remaining four motors at this location were designed to
   have junction boxes (Tr 19, 23).

DISCUSSION

The federal inspector concedes he is not an electrical expert (Tr 11). The uncontroverted evidence shows that this particular motor was not hazardous. It was designed without a junction box.

On these facts, I conclude that motor was not potentially dangerous as that term is defined in 30 C.F.R. 57.12-30.

1919

Citation 331894

MSHA charges Climax did not guard certain electrical connections thereby violating 30 C.F.R. 57.12-23. 2/

The evidence is essentially uncontroverted. I find the following facts to be credible.

8. In a 2 to 3 foot wide walkway the MSHA inspector observed
   uninsulated bus bars (solid copper bars carrying 440 volts) (Tr 45 - 47).

9. The bars, more than 8 feet above the floor, were guarded by
   elevation (Tr 69, 71).

10. There was a 6 foot ladder located within 5 feet (Tr 45).

11. Workers frequently carry conduit or wire (Tr 45 - 47).

12. The National Electrical Code applies to surface facilities. Under
    the Code live parts of 600 volts or less are guarded by location if they are elevated 8 feet or more above the floor (Tr 67, R5, R6).

13. The area was further protected by an insulated mat on the floor
    (Tr 66 - 67, 72).

DISCUSSION

This citation should be vacated. The National Electrical Code provides that bus bars are protected by location if 8 feet-above the floor. This

2/ The cited standard provides as follows:

57.12-23 Mandatory. Electrical connections and resistor grids that are difficult or impractical to insulate shall be guarded, unless protection is provided by location.

1920

interpretation by a recognized electrical authority is confirmed by a document issued by the Department of Labor construing its own standard (R7). Petitioner's objection to the document is again overruled. The exhibit was an admission against petitioner's interest. It's authenticity is established by the Climax electrical superintendent who identified it as written by, and obtained from MSHA (Tr 72 - 76).

At trial MSHA seeks to establish that a location is guarded by height only if it is 10 feet above the adjoining surface (Tr 49). For the above stated reasons I reject MSHA's view. It appears that the ten foot requirement only applies on the outside of buildings (Tr 58).

The electrical connections here were at least 8 feet above the ground. They are accordingly "protected by location" as that term is used in 30 C.F.R. 57.12-23.

MOTION

During the hearing petitioner moved to vacate the citations 329188 and 329191.

Pursuant to Commission Rule 2700.11 the motions should be granted.

WEST 79-304-M

Citation 331868

Petitioner charges Climax failed to guard bus bars thereby violating 57.12-23. 3/

The evidence is conflicting. I find the following facts to be credible.

3/ The cited standard provides as follows:

57.12-23 Mandatory. Electrical connections and resistor grids that are difficult or impractical to insulate shall be guarded, unless protection is provided by location.

1921

14. There were uninsulated bus bars above the switch gears. Bus

bars, made of copper; measured 4 inches wide and 1/4 to 1/2 inch thick (Tr 07 - 89 - 97, 105 - 106).

15. The bars, carrying 440 volts, were located above a 3 foot wide
    walkway (Tr 87 - 92).

16. The bars were 8 feet 6 inches above the floor resting on 4 inch
    insulators, or a total of 106 inches above the floor (Tr 100 - 102).

17. The area under the bus bars can only be entered by opening a metal
    gate. Only the Climax electricians have keys to the gate (Tr 103).

18. There is no reason for anyone to be under the bus bars with rods,
    pipes, or anything of that nature (Tr 104).

19. The National Electrical Code provides that an area is protected by
    location if, as here, it is more than 8 feet above the ground (Tr 104 - 105).

20. There were insulating mats on the floor (Tr 104).

DISCUSSION

The inspector indicated the bus bars were ninety inches (7 feet, 6 inches) above the floor but Climax's electrical superintendent indicated the bottom of the bus bar was 118 inches (9 feet, 10 inches) above the floor. I have accepted Climax's version since the person in charge of the area would ordinarily make a more accurate measurement than an inspector who was engaged in looking into various areas.

The discussion concerning the prior citation is equally applicable here. In short, 8 feet or more above the floor constitutes "protection by location" as that term is used in 30 C.F.R. 57.12-23.

1922

CONCLUSIONS OF LAW

WEST 79-303-M

Citation 329190 and the proposed penalty therefor should be vacated. (Facts 1 - 7)

Citation 331894 and the proposed penalty therefor should be vacated. (Facts 8 - 13)

Citations 329188 and 329191, on petitioner's motion, should be vacated.

WEST 79-304-M

Citation 331868 should be vacated. (Facts 14 - 20).

Based on the foregoing findings of fact and conclusions of law, I enter the following:

ORDER
In Docket Number 79-303-M, Citations 329188, 329190, 329191, and 331894 are vacated.

In Docket Number 79-304-M, Citation 331868 is vacated.

John J. Morris
Administrative Law Judge

Distribution:

Robert S. Bass, Esq., Eliehue C. Brunson, Esq., Office of the Solicitor, United States Department of Labor, 911 Walnut Street, Room 2106, Kansas City; Missouri 64106

Richard W. Manning, Esq., Attorney for Climax Molybdenum Company, a Division of AMAX, Inc., 13949 West Colfax Avenue, Golden, Colorado 80401

1923