Custom Crushing Inc.

Plain-English summary

Custom Crushing operated a small sand and gravel portable crusher. MSHA cited openings in an electrical control panel that could expose a worker to energized 480-volt equipment, and cited a crusher operator who worked without eye protection near flying rock hazards. Judge John J. Morris affirmed both citations, found the operator negligent, and assessed a $50 penalty for each violation. The total civil penalty was $100.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12002, 56.15004, and 56.15005
• Outcome: Both citations were affirmed, with $100 in total civil penalties.
• Key point: Altered electrical-panel covers and missing eye protection were treated as safety violations even after prompt abatement.

Full text (FMSHRC public release)

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           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judges
                         The Federal Building
                    Room 280, 1244 Speer Boulevard
                           Denver, CO 80204

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 90-184-M
PETITIONER A.C. No. 42-01816-05507
v.
CUSTOM CRUSHING INC., Custom Crushing # 1
RESPONDENT

                                DECISION

Appearances: Susan J. Eckert, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Steve Zabriskie, President, Custom Crushing Inc.,
Taylorsville, Utah,
pro se.

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration ("MSHA") charges Respondent Custom
Crushing, Inc., with violating safety regulations promulgated
under the Federal Mine Safety and Health Act, 30 U.S.C. 801, et
seq. (the "Act").

 A hearing on the merits was held in Salt Lake City, Utah, on

April 30, 1991. The parties waived the filing of post-trial
briefs.

                               STIPULATION

 At the commencement of the hearing, the parties stipulated

as follows:

 1. Custom Crushing, Inc., is engaged in the mining of sand

and gravel in the United States, and its mining operations affect
interstate commerce.

 2. Custom Crushing, Inc., is the owner and operator of the

Custom Crushing #1 Portable Crusher, MSHA I.D. No.
42-01816-05507.

 3. Custom Crushing, Inc., is subject to the jurisdiction of

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801,
et seq. (the "Act").

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4. The Administrative Law Judge has jurisdiction in this matter.

 5. The subject citations were properly served by a duly

authorized representative of the Secretary upon an agent of
respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevance of any
statements asserted therein.

 6. The exhibits to be offered by Respondent and the

Secretary are stipulated to be authentic, but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.

 7. The proposed penalty will not affect Respondent's ability

to continue in business.

 8. The Operator demonstrated good faith in abating the

violations.

 9. Custom Crushing, Inc., is a small operator of a sand and

gravel portable crusher with 7,952 control hours worked in 1989.

 10. The certified copy of the MSHA Assessed Violations

History accurately reflects the history of this mine for the two
years prior to the date of the citations.
Citation No. 2652565

 In this citation, MSHA charges respondent with violating 30

C.F.R. 56.12002. (Footnote 1)

 The evidence is uncontroverted: On March 6, 1990, MSHA

Inspector James Skinner, an electrical and hoisting specialist,
inspected Respondent.

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The Operator's electrical control panels were located in the
control trailer. The electrical panels, opened by the Inspector,
housed protective breakers for individual circuits of the
electrical motors throughout the plant.

 Each panel is six feet high and two to three feet wide.

(Exs. P-2 and P-3 are photographs of the outer doors of the
panels.)

 After opening the door, the Inspector observed two rows of

circuit breakers with holes where a circuit breaker had been
removed and a hole had been cut (Tr. 17). After the panel doors
to the energized panels were closed, the Operator objected to
their being reopened. As a result, no inside measurements were
made and no photographs of the interior were taken.

 Exhibit P-4 is an illustration of a circuit breaker panel

taken from the National Electrical Code book (NEC), 1990 Edition.

 Due to the holes, Respondent's panel was unlike those

illustrated in the NEC. (Tr. 19). The holes in the inner panel
were about 3 to 4 inches. As a result of the described condition,
a worker could come into contact with a three-phase 480 volt
current. (Tr. 22). If a worker would touch one of the busses and
be grounded, he would receive a 277-volt shock. Voltage as low as
48 can be fatal. (Tr. 23).

 The design for electrical panels is approved by a national

organization, the National Electrical Manufacturers Association
(NEMA). The NEMA approves of bare busses but an inner covering
panel or "dead front" is required. Respondent's inner panel had
been altered. (Tr. 28).

 In the Inspector's opinion, the violation occurred because

the circuit breakers had been altered from the original design.
The change was where a circuit breaker had been removed, leaving
a hole, and at least one hole had been cut in the panel. (Tr. 33,
34). The alteration of the dead front panel left holes in it.
(Tr. 35).

 The violation was abated by posting signs on the outside

panel stating that the doors should not be opened unless the
generator was de-energized. (Tr. 36).

 STEVE ZABRISKIE, President of Respondent, submitted

photographs of the electrical panel. However, the witness did not
rebut the testimony of Inspector Skinner concerning the holes in
the inner electrical panel. He further confirmed that a worker
could be shocked if he contacted the wires in the holes cut in
the panel. (Tr. 65).

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DISCUSSION

 It is uncontroverted that the electrical panel in

Respondent's control trailer had been altered. The focus of
MSHA's regulation 56.12002 is that the electrical controls were
not of "approved design and construction."

 Inspector Skinner testified the design for such panels is

approved by NEMA. While Nema approves bare busses, they must be
covered. The "dead front" inner panel is a NEMA feature. (Tr.
28).
The design of the internal cover of Respondent's panel board
had been altered. (Tr. 33). Figure 384-3 of Exhibit P-4 shows a
panelboard. The panelboard in the illustration is without
openings such as those at Respondent's electrical panel.

 Section 56.12002 must be construed in light of its

underlying purpose--the protection of miners exposed to the
equipment's use. That purpose was plainly set forth in the
Secretary's statement of purpose and scope of the Part 56
standards, which provided: "The purpose of these standards is the
protection of life, the promotion of health and safety, and the
prevention of accidents." 30 U.S.C. 56.1. Any overly narrow or
restrictive reading of the scope of Section 56.12002 cannot be
reconciled with that statement of purpose or with the fundamental
protective ends of the Mine Act itself, as set forth in the Mine
Act. See 30 U.S.C. 801(a), (d), and (e). Compare Ideal Cement
Company, 12 FMSHRC 2409 (1990). No doubt, the purpose of an inner
panel without holes is to protect a miner from coming in contact
with live busses and terminals.

 On the record here, Citation No. 2652565 should be affirmed.

Citation No. 2652567

 This citation alleges a violation of 30 C.F.R.

56.15004. (Footnote 2)

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The evidence is uncontroverted: On the following day, during
the inspection, Mr. Skinner observed the crusher operator in the
wooden booth near the primary jaw-crusher. The Operator was not
wearing safety glasses nor did he have eye protection while his
head was outside of the window opening. (Tr. 40, 42). His head
was in this position for about five minutes. (Tr. 43). The
jaw-crusher, which can throw rock splinters, was three to four
feet below the employee. (Tr. 44; Exs. R-1 and R-2 show the booth
and employee.) Upon being questioned, the employee said he had
eye glasses but he was unable to produce them.

 The violation was abated when the employee was provided with

glasses. (Tr. 45).

 Witness Zabriskie offered photographs (Exs. R-1, R-2) and

basically confirmed Inspector Skinner's testimony. (Tr. 55-57).

                                 DISCUSSION

 The uncontroverted evidence establishes that the crusher

operator was leaning outside of the booth. In this position, he
was three to five feet above the jaw-crusher. The hazard of
flying rock splinters was apparent.

 The factual situation establishes a violation of 30 C.F.R.

56.15005 and Citation No. 2652567 should be affirmed.

                               CIVIL PENALTIES

 The statutory criteria to assess civil penalties is

contained in Section 110(i) of the Act, 30 U.S.C. 820(i).

 The Operator's history is very favorable. In the two years

ending March 5, 1990, the company received no citations. In the
period before March 6, 1988, there were nine citations.

 The parties have stipulated that Respondent is a small

operator and the proposed penalties will not affect its ability
to continue in business.

 The Operator was negligent as to both citations since it

should have known of the violations.

 The gravity was moderate though remote. Severe injuries

could occur if the circumstances were ideal.

    Respondent promptly abated the violations.

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On balance, a civil penalty of $50 is appropriate for each
violation.

 Accordingly, I enter the following:

                                 ORDER

 1. Citation No. 2652565 is AFFIRMED and a civil penalty of

$50 is ASSESSED.

 2. Citation No. 2652567 is AFFIRMED and a civil penalty of

$50 is ASSESSED.

                                  John J. Morris
                                  Administrative Law Judge

 1. The cited regulation provides as follows:
        56.12002 Controls and switches.
      Electric equipment and circuits shall be provided with

switches or other controls. Such switches or controls shall be of
approved design and construction and shall be properly installed.

 2. The cited regulation provides:
        56.15004 Eye protection.
      All persons shall wear safety glasses, goggles, or face

shields or other suitable protective devices when in or around an
area of a mine or plant where a hazard exists which could cause
injury to unprotected eyes.