Mountain Cement Company, a Wyoming Partnership

Plain-English summary

Mountain Cement Company operated a limestone and cement mill where a working electrical foreman entered a compartment containing both deenergized and energized high-voltage circuits while troubleshooting equipment. The foreman contacted an energized component and died from electrocution. Judge John J. Morris found that the operator violated 30 C.F.R. § 56.12017 because the nearby power circuit had not been deenergized, and he affirmed the significant-and-substantial and unwarrantable-failure findings. The judge assessed a $30,000 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.12017
• Outcome: The citation and the significant-and-substantial and unwarrantable-failure findings were affirmed, with a $30,000 civil penalty assessed.
• Key point: Work near exposed electrical circuits requires deenergizing the circuits, even when the employee is working on a different circuit in the same compartment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

                         July 27, 1993

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 92-111-M
Petitioner : A.C. No. 48-00007-05562
:
v. : Mountain Cement Company
:
MOUNTAIN CEMENT COMPANY, :
a Wyoming Partnership, :
Respondent :

                            DECISION

Appearances: Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;

             Philip Nicholas, Esq., NICHOLAS LAW OFFICE,
             Laramie, Wyoming,
             for Respondent.

BEFORE: Judge Morris

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

Health Administration ("MSHA") charges Respondent Mountain Cement
Company ("MCC") with violating a safety regulation 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 Laramie, Wyoming, on

September 1, 1993. The parties submitted their respective cases
on oral argument.

 Citation No. 3635856, issued under Section 104(d) of the

Act, alleges MCC violated 30 C.F.R. 56.12017.(Footnote 1) The
Citation reads as follows:

         The high voltage dc circuit to the "B" field
         of the electrostatic precipitator was not de-
         energized while two employees were attempting
         to repair the "A" field. Energized compo-
         nents from both fields were located in the
         same compartment. The circuit powering the
         "A" field was de-energized and locked out.
         One individual climbed into the compartment
         to retrieve a conductor connection that had
         been dropped earlier. He contacted the ener-
         gized "B" field component and was electrocu-
         ted. The accident occurred at 2:55 p.m. on
         March 1, 1991. The victim was the working
         electrical foreman and was reportedly very
         familiar with the system. This practice was
         an unwarrantable failure.

                          STIPULATION

    The parties stipulated as follows:

 1.   MCC is engaged in mining and selling of limestone in

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

1 The cited regulation provides:

           56.12017   Work on power circuits.

           Power circuits shall be de-energized before
         work is done on such circuits unless hot-line
         tools are used. Suitable warning signs shall
         be posted by the individuals who are to do
         the work. Switches shall be locked out or
         other measures taken which shall prevent the
         power circuits from being energized without
         the knowledge of the individuals working on
         them. Such locks, signs, or preventive de-
         vices shall be removed only by the person who
         installed them or by authorized personnel.

 2.   MCC is the owner and operator of Mountain Cement Company Mill,

MSHA I.D. No. 48-00007.

 3.   MCC is subject to the jurisdiction of the Federal Mine Safety and

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

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

 5.   The subject citation was 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 its issuance, and not for the truthfulness or relevancy 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 business.

    8.   The operator demonstrated good faith in abating the violation.

    9.   MCC is a large mine operator with 568,861 hours worked in 1990.

 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 Citation.

                         THE EVIDENCE

 MSHA's accident investigation report encapsulates the basic facts as

well as the technical aspects of the case. The parties have stipulated to the
facts in the report. (Tr. 10). It states in part that the MCC mill was
located at 5 Sand Creek Road in the southwest part of Laramie, Albany County,
Wyoming. The mill was operated three shifts per day, seven days a week. The
mill em- ployed 107 people. Limestone, shale, and gypsum, which was mined at
other locations and hauled to the mill, were processed into several types of
Portland cement. Production at the mill aver- aged 400,000 tons a year.

 A cement mill had been located at the site since 1927. MCC had

purchased the facility in 1986 and had remodeled and upgraded

the operation in 1987. The mill was equipped with one dry-feed kiln. A two-
stage preheater was used to heat the material to more than 1500 degrees F
before entering the kiln. Dust gene- rated within the kiln and preheater
system was removed with a high voltage electrostatic precipitator located
between the kiln and the emissions stack.

 On March 1, 1991, LeRoy A. Robarge, victim, reported for work at MCC at

7 a.m., his normal starting time. Robarge, the working electrical foreman,
initially received work assignments from James Lupton, chief electrician, and
his immediate supervi- sor. Robarge also carried a company pager, through
which he was notified of electrical problems and their priority as they oc-
curred during the shift.

 From 7 a.m. until approximately 11 a.m., Robarge had been working on

miscellaneous jobs around the plant. At 11 a.m., Robarge was assigned by
Lupton to troubleshoot an ongoing problem with one of the electrostatic
precipitators. The kiln was tempo- rarily down at this time while a trunnion
was being repaired and the precipitator power could be shut off without
causing the plant to be in violation of EPA stack emissions.

 Greg Morrissey, a newly hired electrician, was contacted by Robarge to

assist with the task of determining why A-field in the precipitator was not
producing the dc voltage as it was designed to produce. Morrissey had been
working with Robarge on several electrical jobs the past two weeks and was
being trained by Ro- barge. The men went to the motor control center #4 where
Robarge explained to Morrissey the control switches and disconnects for the
four precipitator units. The A-field circuit breaker was switched off and
locked out and they proceeded to the top floor of the nearby precipitator
building where the transformer/recti- fier units were located. Robarge began
troubleshooting by drain- ing the oil from the A-field transformer. The
transformer was then dismantled and the transformer coils tested for possible
damage. When it was concluded that the problem was not in this area, the
transformer was reassembled and the oil replaced.

 The high voltage power conductors for the A-field were located inside a

14-inch diameter isolating (air insulating) container tube. The tube was
provided with an inspection cover located on the east horizontal section
leading from the trans- former. The cover was removed so the internal
conductors could be visually inspected. Because the vertical conductor
appeared to be misaligned and entered the bushings at an angle, they decided
to correct this by extending the horizontal conductor approximately 1/2 to 3/4
inch by the addition of a nipple.

 Morrissey, working through the inspection cover, discon- nected the

connection between the vertical and horizontal con-

ductors. At this time, the vertical section slipped and dropped inside the
precipitator compartment.

 Because of the time which was 2:15 p.m. (break time), and the need to

get an extension nipple, the two men left the area by the south exit door and
went to the electrical shop. After a short coffee break, the men returned
with the nipple to the pre- cipitator floor.

 Robarge went to the west side of the unit and opened the access hatch.

It could not be determined whether Robarge entered the compartment head first
or feet first but while trying to reach the fallen conductor, he contacted the
energized B-field conductor.(Footnote 2)

 Morrissey, working on the east side, heard the arcing caused by

Robarge's contact with approximately 50,000 volts of dc cur- rent. He went
around the compartment where he could see arcing and knew that he could not
help Robarge until the power had been turned off. Going to the east side door
he shouted for help. Joe Bigelow, electrician, working one floor below the
accident scene responded. Bigelow ran down the stairs to the motor con- trol
center where he shut off the power to all four precipitator units. He then
went back outside and shouted to Morrissey that all power was off and secured.

 Ken Keirn, Stan Vialpondo, and Gary Cook, all mechanics, also responded

to the calls for help. They assisted with re- moving Robarge from the
interior of the precipitator unit. Ro- barge's jacket was on fire and they
removed it. His shirt was also burning and the fire was put out. Vital signs
could not be detected at this time and CPR was immediately initiated and con-
tinued until the arrival of emergency personnel from the Laramie Fire Brigade,
County Sheriff's office, and three Emergency Med- ical Technicians with the
Ivinson Memorial Hospital ambulance.

  Robarge was placed on a back board and carried down the outside east

stairway. CPR was continued at the different stairway landings on the way
down.

 The victim, under the care of EMTs, was transported to Ivinson Memorial

Hospital where he was pronounced dead by the emergency room physician at 4:24
p.m. Cause of death was cardiac arrest caused by electrocution.

2 The west side of the compartment is shown in Exhibit M-1. The
22-inch access door is shown in Exhibit G-9 (if Robarge entered the com-
compartment head first he would move in the direction shown by the worker
in Exhibit G-8). (Tr. 52).

               PHYSICAL FACTORS INVOLVED

 The accident occurred on the upper level of the electrostat-

ic precipitator inside a compartment that contained electrical components that
were fed from two different power resources. The precipitator was a dust-
collecting device located between the kilns and the emissions stack. The
precipitator utilized groups of suspended wire electrodes charged with a
positive polarity 50,000-volt direct current charge to attract dust and
particu- lates generated in the kiln. These groups of suspended wire
electrodes were called "fields." Periodically the electrodes were subjected
to mechanically applied vibrations to shake down the attracted dust into
hoppers located beneath the electrodes. The collected dust was then hauled
away for disposal.

 Exhibit G-12 shows the energized tube on the B field and insulated

portions in the compartment. They are marked "ener-gized" and "insulator."
Burns on Robarge indicated his head touched the energized portion. (Tr. 37-
40).

 The electrostatic precipitator was approximately 80 feet high, 30 feet

wide and 40 feet long. The upper level of the precipitator was covered with a
gable-roofed metal building. Access to the upper level of the precipitator
was provided by
two outside stairways located on the east and south sides of
the precipitator.

 The electrode fields in the precipitator were divided into four groups.

These groups were identified as A, B, C, and D fields. Each field was powered
from a separate high voltage transformer/rectifier unit.

 Three rows of compartments with four compartments in each row were

located in the metal building on top of the precipi- tator. These
compartments were used to enclose the electrical connections and parts of the
suspension system for the fields. The A and B fields were located at the kiln
end of the precipi- tator where the dust was the heaviest. Consequently,
these fields required more power and less space. Both A and B fields were
installed in the first (south) row of compartments.

 C and D fields were suspended and connected individually in the next two

rows of compartments. This nonstandard arrangement may have confused the
victim and contributed to the accident.

 The twelve compartments atop the precipitator were all con- structed

similarly. They were approximately 8' 6" long, 4' high and 2' 8" wide.
Access to the interior of the compartment was through 22" diameter round
hatches that extended 8" from the long side of the compartments near floor
level. The access hatch to the compartment where the accident occurred was on
the west side

of the compartment located at the southeast corner of the precipitator.

 Two support insulators were located in the compartments one at each end.

The insulators were constructed of fiberglass tub- ing approximately 14" in
diameter and approximately 18" high. A .25" thick steel plate was bolted to
the top of each insulator.
A 2" diameter threaded steel rod extended upward from the top of the
insulator. The steel plates and threaded rods were energized when the fields
were energized. At the time of the accident the B-field was mistakenly left
energized and the victim contacted the energized rod or plate while inside the
compartment.

 The primary power for the four precipitator fields was fed from motor

control center #4 located in a ground level building on the west side of the
precipitator. The primary power was 480 volts ac, single phase. The
controllers for the fields were fed from circuit breakers mounted in the panel
located in the center of the building. The controllers were located along the
west wall of the building. Each controller was equipped with a dis- connect
and instruments to monitor voltages and currents of the fields.

 The transformer/rectifier units for the fields were located between the

compartments on the top of the precipitators. The transformer/rectifier units
were equipped with tap changing ro- tary switches. The tap changers had five
positions which could be set to isolate and ground the fields or could be set
to change the intensity of the dc charges on the field. Other than the tap
changers there was no way to disconnect the transformer/rectifier units on
the upper level. Electricians stated that the primary power had to be
deenergized before the tap changers could be operated to prevent damage to the
transformer/rectifier unit.

 The rotary tap changers were equipped with key operated interlocks that

were designed to prevent persons from gaining access to the interior of the
compartments or to the interior of the precipitator while the system was
energized. Witnesses and others interviewed during the investigation stated
that the lock to the compartment where the accident occurred had been disas-
sembled and the interlocking system, was bypassed. No one knew or would say
when the lock was disassembled. Further investi- gation found that the
interlocking system required some main- tenance and alignment but would
operate. The system would have prevented access to energized components had
the lock not been disassembled.(Footnote 3)

3 The lock is shown on the access door at approximately 2 o'clock in
Exhibit G-9.

 The victim, who was the working electrical foreman, and his assistant

were engaged in troubleshooting the A-field components. They were attempting
to locate the cause of an ongoing low output voltage problem. The assistant
who had only worked two weeks at the operation stated that he knew very little
about the precipi- tator and was following instructions of the victim. The
circuit to the A-field transformer/rectifier unit was opened and locked out in
the control house at ground level. The originally planned work did not
require either of the two electricians to enter the compartments or the
precipitator so probably no thought was given to the need to deenergize the B-
field. As the trouble-shooting continued, the A-field conductor was uncoupled
and part of the conductor and a piece of the coupling fell into the
compartment. In attempting to retrieve the conductor and coupling part, the
victim entered the compartment and was electrocuted.

 A shorting stick with a clamp and 6' long conductor was available at

the compartment to test for current and to discharge static from the
components within the compartments. Evidently the stick was not used prior to
the accident. The victim may have failed to use the shorting stick (Footnote
4) because he was in a rush to get the precipitator on line.

             DISCUSSION AND FURTHER FINDINGS

 The cited regulation 30 C.F.R.   56.12017 requires that power circuits

"shall be deenergized before work is done on such circuits unless hot-line
tools are used."

 The Commission in Ideal Cement Company, 11 FMSHRC 2409, 2416 (November

1990) stated that in interpreting and applying broad-worded standards, the
appropriate test as whether a reasonably prudent person familiar with the
mining industry and the protec- tive purposes of the standard would have
recognized the specific prohibition or requirement of the standard, citing
Canon Coal Co., 7 FMSHRC 6676, 6678 (April 1987), Quinland Coal, Inc., 1614,
1617-1618 (September 1987).

 In this situation, the electrical foreman who was very knowledgeable

about the electrical circuits, entered the compart- ment containing energized
and deenergized circuits. There were multiple ways to shut off the power but
these were ignored as was the by-passed lockout system.

4 The shorting stick is shown in Exhibit G-14.

 It is common knowledge that if a person is in close proxim- ity to

energized circuits of 50,000 volts, he runs the risk of electrocution.

 In support of his position, the Secretary cites Amax Coal Company 8

FMSHRC 1975 (August 1981) wherein Judge Joseph B. Kennedy considered a similar
regulation, 77.500, to the one in contest here. I agree with Judge Kennedy
when he stated that:

         Even if Mr. Morris [electrician] did not intend to
         work on the upper energized circuits, he was in
         violation of Section 77.500. The MSHA Inspector's
         Manual states:

         "[w]hen work is performed in close physical proximity
         to exposed electrical circuits or parts, they shall be
         deenergized ... . All circuits within an electrical
         enclosure shall be deenergized before work is
         performed within the enclosure unless such energized
         circuits are guarded by suitable physical guards or
         adequate physical separation. 3 FMSHRC at 1982, 1983.

 In the instant cases, both the energized and deenergized

circuits were located in the same compartment. The very hazard
presented by entering such compartments is the danger of
contacting such circuits.

 In addition, the Secretary's interpretation of his regu-

lation is entitled to due deference; Secretary of Labor, o.b.o.
Bushnell v. Cannelton Industries, Inc., 867 F.2d 1432 (D.C. Cir.
1989).

 MCC contends its foreman was working on the "A" field. As a

result, there was no violation because he was not working in the
energized "B" field. I disagree. Once a situation of close
proximity exists, a violation has occurred.

 MCC further argues the standard should be interpreted as

written. (Tr. 29). In short, the only evidence of work being
done at the time was the foreman's efforts at retrieving the
tools. Therefore, no "work" was being done "on such circuits."
The record here illustrates that no work was being done on any
circuit. However, if I accept MCC's argument to its ultimate
conclusion, then no circuit would be deenergized merely to re-
trieve tools in the energized compartment. Such an interpreta-
tion of 56.12017 would hardly promote the safety and health of
miners.

    The citation should be AFFIRMED.

                  SIGNIFICANT AND SUBSTANTIAL

 A violation is properly designated as being "Significant and

Substantial" ("S&S") if, based on the particular facts surround-
ing the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (January 1984), the Commission explained:

           In order to establish that a violation of a man-
         datory standard is significant and substantial under
         National Gypsum the Secretary must prove: (1) the
         underlying violation of a mandatory safety standard;
         (2) a discrete safety hazard--that is, a measure of
         danger to safety--contributed to by the violation;
         (3) a reasonable likelihood that the injury in
         question will be of a reasonably serious nature.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-104 (5th
Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria). The question of whether any specific viola-
tion is S&S must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498, 500-501 (April 1988);
Youghiogheny and Ohio Coal Co., 9 FMSHRC 2007, 2011-2012
(December 1987).

 The evidence establishes that a violation of   56.12017

occurred. A measure of danger to safety was contributed to by
the violation. Since the hazard contributed to the fatality, the
third and fourth formulations of Mathies were established.

    The special allegations of S&S should be AFFIRMED.

                      UNWARRANTED FAILURE

 The Secretary contends this violation was due to the unwar-

rantable failure of MCC to comply with the regulation.

 The special finding of unwarrantable failure, as set forth

in Section 104(d) of the Mine Act, 30 U.S.C. 814(d), may be
made by authorized Secretarial representatives in issuing cita-
tions and withdrawal orders pursuant to Section 104. In Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), and Youghio-
gheny and Ohio Coal Company, 9 FMSHRC 2007, 2010 (December 1987),
The Commission defined unwarrantable failure as "aggravated con-
duct constituting more than ordinary negligence by a mine opera-
tor in relation to a violation of the Act." Emery examined the
meaning of unwarrantable failure and referred to it in such terms

as "indifference," "willful intent," "serious lack of reasonable
care," and "knowing violation." 9 FMSHRC 15 2003.

 In this case, there were no written instructions posted for

employees to review explaining the deenergizing and locking out
of the circuits. In addition, no warning signs were posted on
the compartment to show the circuits were fed by two different
power sources. Further, a shorting stick was not used to check
the current. Additionally, the interlock system was rendered
ineffective and by-passed. An effective system would have pre-
vented the accident. Finally, the working electrical foreman
failed to insure that the B-field was deenergized before he
worked in close proximity to it.

 These factors establish high negligence and unwarrantability

on the part of MCC.

                     CIVIL PENALTIES

 Section 110(i) of the Act mandates consideration of certain

criteria in assessing civil penalties.

 MCC is a large operator with 568,861 hours worked in 1990.

(Stipulation).

 The proposed penalty will not affect the operator's ability

to continue in business. (Stipulation).

 The operator's prior history consisted of 67 assessed

violations for the two-year period ending March 26, 1990.
(Ex. G-1).

 The operator's negligence was such that the violative con-

dition could have been easily prevented.

 The gravity was apparent. MCC abated the violation and is

entitled to statutory good faith.

 In this case, the Secretary proposes a civil penalty of

$30,000. Based on the record, I concur in this assessment.

 For the foregoing reasons, I enter the following:

                          ORDER

 Citation No. 3635856 is AFFIRMED and civil penalty of

$30,000 is ASSESSED.

                                  John J. Morris
                                  Administrative Law Judge

Distribution:

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)

Philip Nicholas, Esq., NICHOLAS LAW OFFICE, 221 Ivanson, P.O. Box
928, Laramie, WY 82070 (Certified Mail)

ekRobert J Murphy Esq
Office of the Solicitor
U S Department of Labor
1585 Federal Office Building
1961 Stout Street
Denver CO 80294
Philip Nicholas Esq
NICHOLAS LAW OFFICE
P O Box 928
Laramie, WY 82070