Western Fuels-Utah, Inc.

Plain-English summary

Western Fuels operated the Deserado underground coal mine in Colorado. MSHA cited the mine after finding that a communication cable crossed a 995-volt power cable without additional insulation. Judge Richard W. Manning held that 30 C.F.R. § 75.516-2(c) requires additional insulation where communication circuits pass over or under any power conductor, not only in track entries. He affirmed the citation even though the cables were insulated, protected by outer jackets, and unlikely to be damaged. The citation was non-S&S with moderate negligence, and the proceeding was dismissed after the citation was affirmed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.516-2(c)
• Outcome: Citation 4059968 was affirmed, and the contest proceeding was dismissed.
• Key point: The additional-insulation requirement applies to communication circuits crossing any power conductor, and the existing cable protection did not eliminate the violation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                         May 15, 1995

WESTERN FUELS-UTAH, INC., : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 94-391-R
v. : Citation 4059968; 4/21/94
:
SECRETARY OF LABOR, : Deserado Mine
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Mine I.D. 05-03505
Respondent :

                            DECISION

Appearances: Karl F. Anuta, Esq., Boulder, Colorado,
for Contestant;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent.

Before: Judge Manning

 This case is before me on a notice of contest filed by

Western Fuels-Utah, Inc. ("Western Fuels") against the Secretary
of Labor and his Mine Safety and Health Administration ("MSHA"),
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. ' 815. Western Fuels contests the issuance of
Citation No. 4059968 to it at its Deserado Mine on April 21,
1994. For the reasons set forth below, I affirm the citation.

 A hearing was held in this case on January 5, 1995, in Grand

Junction, Colorado. The parties presented testimony and documen-
tary evidence, and filed post-hearing briefs.

                    I.   FINDINGS OF FACT

  The Deserado Mine is an underground coal mine in Rio Blanco

County, Colorado. It mines coal using the longwall method and
transports coal out of the longwall section on a conveyor belt.
On April 21, 1994, MSHA Inspector Phillip Gibson issued a section
104(a) citation to Western Fuels because "additional insulation
was not provided for the communication circuit in the belt con-
veyor entry of the 9th East longwall section at the point where
the circuit passed over the 995 V AC power conductor." (Ex.
M-1). He alleged a violation of 30 C.F.R. ' 75.516-2(c). In the

citation, Inspector Gibson stated that an injury was unlikely,
that if an injury did occur it would not result in any lost work
days, and that the violation was not of a significant and sub-
stantial nature. He determined that the mine operator's negli-
gence was moderate. The citation was abated by moving the
communication cable and a nearby telephone.

 Section 75.516-2 provides, in pertinent part:

      Communication wires and cables; installation;
      insulation; support.

           (a) All communication wires shall be
      supported on insulated hangers or insulated
      J-hooks.
           (b) All communication cables shall be
      insulated ..., and shall either be supported
      on insulated or uninsulated hangers or J-
      hooks, ... or buried, or otherwise protected
      against mechanical damage....
           (c) All communication wires and cables
      installed in track entries shall, except when
      a communication cable is buried in accordance
      with paragraph (b) of this section, be in-
      stalled on the side of the entry opposite to
      trolley wires and trolley feeder wires. Ad-
      ditional insulation shall be provided for
      communication circuits at points where they
      pass over or under any power conductor.
           (d) For purposes of this section,
      communication cable means two or more insu-
      lated conductors covered by an additional
      abrasion-resistant covering.

Western Fuels does not deny that the phone cable passed over the
power cable and that additional insulation was not provided at
that location. It contends, however, that this condition did not
violate the safety standard.

 Tracks and trolley wires are not used in the Deserado Mine.

Between 70 and 80 permissible telephones are present
underground, which are used as the primary means of communication
in the mine. (Tr. 112-13; Ex. W-2). These phones are connected
through and powered by 24-volt DC audio communication cables,
which contain four shielded conductors and are protected by an
outer jacket. (Tr. 109-10; Ex. W-7). The phone cables are
installed on J hooks attached to the roof in the belt entry of
the longwall section. Western Fuels does not dispute that its
phone cables are a "com-munication circuit," as that term is used
in the standard. Elec-tricity for the longwall section is

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supplied through power cables, which carry about 995 volts AC.
(Tr. 106-09; Ex. W-6). The power cables contain three power
conductors, two ground conductors and a conductor for the ground
fault monitor. (Tr. 108). The cable has a dielectric rating of
2,000 volts and is protected by an outer jacket. (Tr. 106-08;
Ex. W-6). The power cables are installed in the belt entry on a
monorail. The mono-rail consists of a long I-shaped bar
suspended from the mine roof. (Ex. W-4). The power cables are
suspended from cable carriers that are located along this bar.
(Ex. W-5). The cable carriers are on wheels so that they may be
moved along the mono-rail, as necessary. Two power cables and
several compressed air lines are supported by the cable carriers.

 Inspector Gibson testified that the communication cable

touched the power cable where they crossed. (Tr. 18). Robert
Daniels, a safety inspector and trainer with Western Fuels,
testified that the cables were about three inches apart. (Tr.
100). Neither party, however, contends that this conflict is
significant in the resolution of this case. Both cables were
well insulated and were protected against mechanical damage by
outer jackets. Neither cable was damaged or worn at the cited
location. The fuses and circuit breakers protecting the com-
munication and power circuits were adequate. Mobile equipment
was not used in the entry where the citation was written.
Finally, MSHA would have permitted Western Fuels to abate the
citation by covering either cable with a single wrap of elec-
trical tape at the crossover point.

 It is not uncommon for cables to become cracked or broken in

underground coal mines. (Tr. 126-27). MSHA believes that addi-
tional insulation is necessary where communication circuits pass
over or under power cables because communication circuits lead
directly to telephones used by miners on a regular basis. These
telephones are an important safety tool for miners. If the com-
munication circuit becomes energized by a power cable, anyone
using the phone could be injured, a methane explosion could
occur, and the phone system could be knocked out. The Secre-

Exhibit W-6 is portable mining cable. The cable in-stalled to
supply power to the longwall is similar, but is a larger 350 MCM
cable. (Tr. 107).

Western Fuels has a backup wireless communications system for
use in the event the communication circuit is not func-tioning.

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tary's witnesses acknowledged that, given the condition of the
cables at the cited location, the chance of the communication
circuit becoming energized by the power cable was remote. (Tr.
31-32, 34, 62-64; Ex. W-1 p.7). They stated that the requirement
for additional insulation is to provide an extra measure of
safety for an abnormal situation, in case "something out of the
ordinary were to occur." (Tr. 62-64).

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         II.   SUMMARY OF THE PARTIES' ARGUMENTS

 A.   Western Fuels

 Western Fuels makes several arguments in support of its

contention that it did not violate the safety standard. First,
it argues that the provisions of section 75.516.2(c) are only
applicable to track entries. Western Fuels contends that the
two sentences in 75.516-2(c) must be read together and that the
phrase "communication wires and cables installed in track en-
tries" in the first sentence of subsection 2(c) is also appli-
cable to the second sentence. It reasons that the language of
the first sentence of the subsection limits the application of
the entire subsection to track entries, because such entries
contain bare trolley wires. Western Fuels further contends that
the language of the subsection is clear, not ambiguous, and is
not subject to a contrary interpretation by MSHA. Since the
communication cable observed by the inspector was not in a track
entry, the safety standard was inapplicable and, consequently,
there was no violation.

 Second, Western Fuels argues that Commission precedent

requires that the MSHA inspector make an objective evaluation of
the conditions observed to determine whether a hazard was pres-
ent. In this case, it argues that the inspector failed to take
into consideration the condition of the power and communication
cables, the degree of insulation and physical protection provided
by the cables themselves, the method the mine used to support the
cables, the fact that no vehicles travel through the area, and
other environmental factors. Western Fuels contends that the
citation should be vacated because the inspector failed to make
the requisite objective evaluation of these conditions.

 Finally, Western Fuels contends that MSHA's interpretation

of the standard is nonsensical and defeats its purpose. It
maintains that the purpose of the safety standard is to protect
miners from the potential hazards of electrical shock or fire in
the event communication wires or cables contact bare trolley
wires. It makes sense to require additional insulation where
communication cables cross bare trolley wires because a trolley
wire is not insulated. Applying the standard to communication
cables that are not in track entries is illogical because power
cables and communication cables are adequately protected by the
insulation and outer jackets provided by the manufacturer.

 B.   Secretary

 The Secretary contends that the second sentence of section

75.516-2(c) was promulgated to deal with communication wires,
wherever they may be located. He maintains that the second

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sentence is concerned with communication circuits crossing "any
power conductor," not just trolley wires. The Secretary points
to the fact that the safety standard deals with the hazards of
communication circuits, not with the hazards of trolley wires or
track entries. Thus, the standard is titled "Communication wires
and cables; installation; insulation; support." The Secretary
maintains that the second sentence of subsection 2(c) is appli-
cable to the conditions cited by the inspector.

 The Secretary also contends that the word "additional" in

the standard means what it says: additional insulation must be
provided by the mine operator at the applicable locations. He
argues that the degree of protection provided by the cable
manufacturer and the environmental conditions at the mine are
irrelevant in determining whether there is a violation of the
standard. Thus, the inspector is not required to make an ob-
jective evaluation of the these conditions.

 Finally, the Secretary contends that, to the extent the

standard is deemed to be ambiguous or silent as to the issues
raised by Western Fuels, the Commission should give the Secre-
tary's interpretation deference. The Secretary maintains that
his interpretation is entitled to deference because it is clearly
consistent with the purposes of the Mine Act.

         III.   DISCUSSION WITH FURTHER FINDINGS
                            AND
                    CONCLUSIONS OF LAW

 I find that the language of the safety standard is clear on

its face and that the second sentence is applicable to the
condition cited by Inspector Gibson. Accordingly, I have not
reached the Secretary's deference argument. The safety standard,
30 C.F.R. ' 75.516-2, is directed to hazards associated with
communication wires and cables. One sentence in the standard
specifically directs that communication wires and cables be
installed on the side of the entry opposite trolley wires. No
other sentence in the standard speaks of track entries or trolley
wires. The sentence in dispute specifically states that its
requirements are applicable where communication circuits "pass
over or under any power conductor." Thus, by its own terms, the
requirements of that sentence are not limited to areas where
communication circuits cross over bare trolley wires.

 Although the placement of the disputed sentence immediately

after the sentence concerning trolley wires is unfortunate, such
placement does not alter the meaning of specific language of the
sentence. I believe that such placement should not cause undue
confusion because of the clarity of the language. It is not

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logical to assume that, because the first sentence in subsection
2(c) addresses the hazards of communication wires in track
entries, the second sentence is also applicable only to track
entries. The title of the standard is broadly worded and the
language in the sentence in question specifically addresses all
power cables, not just trolley wires. Because the sentence is
applicable to all power cables, it is not logical to limit its
scope to track entries. If a communication circuit passing over
an insulated power cable poses a hazard in a track entry, then it
would also pose a hazard in other entries. Thus, I find that the
second sentence of section 75.516-2(c) is not limited to communi-
cation circuits in track entries.

 Western Fuels maintains that Inspector Gibson was required

to consider the conditions present in the mine and determine
objectively whether additional insulation was required where the
communication cable passed over the power cable. In making this
argument, Western Fuels relies on the Commission's decisions in
Homestake Mining Co., 4 FMSHRC 146 (February 1982) and Climax
Molybdenum Co., 4 FMSHRC 159 (February 1982). For the reasons
discussed below, I believe that those cases are distinguishable.

 In Homestake and Climax, insulated power cables were in

contact with waterlines, telephone lines, and air lines. The
safety standard at issue provided that "powerlines shall be well
separated or insulated from waterlines, telephone lines, and air
lines." MSHA inspectors issued citations without determining
whether the powerlines were "well separated or insulated" from
the waterlines, telephone lines, and air lines. The inspectors
believed that the standard required operators to provide addi-
tional insulation around the power cables, above that supplied by
the manufacturer, at such contact points. In vacating the cita-
tions involved, the Commission emphasized that the standard at
issue "does not state that additional insulation' must be placed betweenpowerlines' and pipelines; it merely requires separation
or insulation." 4 FMSHRC at 149. Thus, the Commission held that
the Secretary was required to show, through objective evidence,
that the insulation provided in the power cable was insufficient
at the specified contact points, given the specific conditions
found in the mine.

 The safety standard at issue in this proceeding specifically

states that "additional insulation" must be provided at specified
points. Thus, even if the cables are "well separated or insu-
lated," additional insulation is required.

This safety standard is currently at 30 C.F.R.
' 57.12082.

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 Western Fuels also cites the decision of Judge George A.

Koutras in Cyprus Emerald Resources Corp., 11 FMSHRC 2329
(November 1989). In that case, a citation was issued because a
"light switch power cable was not adequately protected where [it]
passed over [an] energized trolley wire." 11 FMSHRC at 2337.
The safety standard cited, 30 C.F.R. ' 75.517, provides that
"power wires and cables, except trolley wires, trolley feeder
wires, and bare signal wires, shall be insulated adequately and
fully protected." Judge Koutras used the Homestake approach and
determined that, in order to establish that a power cable is not
fully protected, the inspector "must, on a case-by-case basis,
make an objective evaluation of all the circumstances presented
... [to] support a reasonable conclusion that the cable is lo-
cated and utilized in such a manner as to expose it to physical
damage." 11 FMSHRC at 2345. While I am in agreement with the
judge's approach in that case, it is not applicable here. Sec-
tion 75.516-2(c) does not provide that cables be adequately pro-
tected and insulated, it requires that "additional insulation"
be provided at specified locations.

 Finally, Western Fuels points to the decision of Judge John

J. Morris in Western Fuels-Utah, Inc., 16 FMSHRC 295 (February
1994). In that case, a communication cable crossed over a power
cable and an MSHA inspector issued a citation for a violation of
section 75.516-2(c). Judge Morris affirmed the citation. West-
ern Fuels argues that Judge Morris held that an objective eval-
uation of the particular conditions observed by the MSHA inspec-
tor was required. Although Judge Morris cited Homestake and
Cyprus Emerald in his decision, it is not clear to me that he
applied them in his analysis. 16 FMSHRC at 305-06. In any
event, he did not hold that the Secretary must show that the
existing insulation is inadequate in order to sustain a violation
of subsection 2(c).

 I conclude that the Secretary was not required to show that

the insulation and outer jacket on the communication and power
cables was insufficient in order to sustain a violation of 30
C.F.R. ' 75.516-2(c) in this case. The fact that the cables were
in good condition, were well insulated and protected by outer
jackets, and were unlikely to be struck by mobile equipment does
not invalidate the citation. These facts and other environmental
factors relate to the gravity of the violation, not to the fact
of violation.

 In large measure, Western Fuels is arguing that the hazard

is so remote in this case that enforcement of the standard in the
manner advocated by MSHA does not advance the safety of its
miners. It maintains that an objective evaluation of the sur-
rounding conditions is necessary to determine if there is a suf-
ficient hazard to create a violation. There is no dispute that

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there was only a remote possibility that the communication cir-
cuit could become energized by the power cable as a result of
this violation. The safety resources of MSHA and mine operators
are finite. To the extent that MSHA is enforcing this standard
in the manner described above, and mine operators are employing
its resources to comply with the standard, those resources cannot
be applied to other more serious hazards. Thus, Western Fuels is
questioning the opportunity cost of enforcing this safety stand-
ard without regard to the hazard created. This issue, however,
is beyond my authority and is more properly addressed to the
Assistant Secretary for Mine Safety and Health.

                       IV.   ORDER

 Accordingly, Citation No. 4059968 is AFFIRMED and this

proceeding is DISMISSED.

                          Richard W. Manning
                          Administrative Law Judge

Distribution:

Karl F. Anuta, Esq., 1720 14th Street, P.O. Box 1001, Boulder,
CO 80306 (Certified Mail)

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

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RWM

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