Black Mesa Pipeline, Inc.

Plain-English summary

Black Mesa Pipeline operated a coal-slurry preparation plant with electrical equipment. Judge Jacqueline Bulluck found that the company violated Mine Act electrical examination and record-keeping requirements after its qualified electrician testing program did not meet the regulatory requirements. The judge found the examination violation significant and substantial and attributed it to unwarrantable failure, while also finding a related record-keeping violation. The Commission later reversed those findings and eliminated the related penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.103, 77.502, and 77.800-2
• Outcome: The ALJ found violations of 30 C.F.R. § 77.502 and § 77.800-2, including an S&S finding and unwarrantable failure, and assessed a civil penalty.
• Key point: The ALJ applied the regulation's qualification and examination requirements to the operator's testing and record-keeping practices. The Commission later rejected that interpretation.

Full text (FMSHRC public release)

FED ERA L M INE SA FETY A ND HEA LTH REV IEW COM M ISSION
OFFICE OF A DM INISTRA TIV E LA W JUDGES
2 SK YLINE, 10th FLOOR
5203 LEESBURG PIK E
FA LLS CHURCH, V IRGINIA 22041

                                          June 29, 1998

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 97-49
Petitioner : A.C. No. 02-01047-03529
v. :
: Docket No. WEST 97-172
BLACK MESA PIPELINE, INC., : A.C. No. 02-01047-03531
Respondent :
: Kayenta Preparation Plant

                                           DECISION

Appearances: Margaret A. Miller, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado, for the Petitioner;
Gregory J. Leisse, Esq., Phoenix, Arizona, for the Respondent.

Before: Judge Bulluck

    These consolidated cases are before me on Petitions for Assessment of Civil Penalty filed

by the Secretary of Labor, through her Mine Safety and Health Administration (AMSHA@), against
Black Mesa Pipeline, Incorporated (ABlack Mesa@), pursuant to section 105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. ' 815. The petitions seek civil penalties for alleged
violations of sections 77.103, 30 U.S.C. ' 77.103; 77.502, 30 U.S.C. ' 77.502; and 77.800-2, 30
U.S.C. ' 77.800-2, in the amounts of $1,500.00, $2,500.00 and $200.00, respectively.

   A hearing was held in Denver, Colorado. The parties= post-hearing briefs are of record.

For the reasons set forth below, Citation No. 3850060 shall be VACATED, and Citation
Nos. 4366052 and 4366053 shall be AFFIRMED.

I. Stipulations

      The parties stipulated to the following facts:

   1. The Black Mesa Pipeline, Incorporated, is engaged in mining and selling of coal in the

United States, preparation and transport of coal, and its mining operations affect interstate
commerce.

    2. The Black Mesa Pipeline, Incorporated, is the owner and operator of the Black Mesa

Pipeline Preparation Plant, MSHA I.D. No. 02-101047.

Page 2

  3. The Black Mesa Pipeline, Incorporated, is subject to the jurisdiction of the Federal

Mine Safety and Health Act of 1977.

   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 the 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 relevancy of any of the 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 matter asserted
therein.

   7. The proposed penalty will not affect Respondent=s ability to continue in business.

    8. A certified copy of the MSHA assessed violation history accurately reflects the history

of the mine.

II. Factual Background

    Black Mesa Pipeline Preparation Plant (Aprep plant@), located near Kayenta, Arizona,

is the sole contractor that provides transportation of coal mined at the Black Mesa Coal Mine,
owned by Peabody Western Coal Corporation, to an electrical power plant (Tr. 134). The coal
from the nearby mine is pressed to a very fine, Apowder chocolate-like@ consistency, mixed with
water, then piped to a power plant some 200 miles away, where it is extracted from the water for
use (Tr. 30). The prep plant employs 36 workers, and operates two production shifts and one
graveyard shift for equipment maintenance (Tr. 32). Equipment at the prep plant includes very
large pump stations, crushing mills, belts, a variety of motors ranging from 110 volts to high-
voltage of 4160 volts, and other high-voltage equipment such as breakers, control circuits,
disconnects, cables, and safety equipment (Tr. 30-31). 1
1
MSHA categorizes electrical voltage as follows:

       low-voltage ranges from 1 to 660;
        medium-voltage ranges from 661 to 1,000; and
       high-voltage is anything over 1,000 (Tr. 29).




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    On June 25, 1996, MSHA electrical inspector Peter Saint, assigned to the Trinidad,

Colorado office, conducted his first electrical inspection (CBA) of the prep plant (Tr. 32, 34). At
that time, Inspector Saint had been employed by MSHA for less than two years, but had 20 years
of mining experience and had held electrical qualifications for approximately 13 years in surface
and underground low/medium- and high-voltage electricity, and was qualified to perform high-
voltage energized work, as well (Tr. 23-28).

     During the course of this inspection, Inspector Saint requested access to the record book

of monthly examinations on the high-voltage electrical equipment (Ahigh-voltage book@) (Tr. 34).
He was presented with a spiral notebook containing entries which indicated that the examinations
on high-voltage equipment were being performed by electricians only qualified in low/medium-
voltage (Tr. 34-35). The inspector also observed a high-voltage (4160 volts) motor being
Achanged out@ by one of the prep plant=s electricians (Tr. 51, 58-60). The inspector=s review of
the qualifications of the prep plant=s seven electricians revealed that all held surface low/medium-
voltage green cards (Tr. 32, 36-37; Gov=t Ex. 6). In subsequent conversations with prep plant
electricians and officials, including Gilbert Castillo, Andy Mikesell and Lowell Hinkins, Inspector
Saint learned that the prep plant=s electricians had been performing all electrical work on the
property, including high-voltage work, and that this arrangement had been going on for some 18
years (Tr. 51-52, 64-65, 76). Respecting several 4160-volt switchgears located on the premises,
Inspector Saint was told that the electricians Arack out@ the units and ship them to a contractor
who performs checks and maintenance on them (Tr. 52-55; see Gov=t Ex. 7). They related their
belief to the inspector that they were qualified to perform the work, since they had passed five
tests required by MSHA, and they did not work on high-voltage energized circuits/lines (Tr. 64-
66, 76). Inspector Saint discussed with the miners that MSHA requires them to maintain a high-
voltage book that is approved by the Secretary--hardbound with fixed sequential pages that
cannot be altered--and that only high-voltage qualified electricians are authorized to perform the
examinations and maintenance, and sign the book (Tr. 50-51, 55-56). After two telephone
discussions with his electrical supervisor in Denver, Donald Gibson, Inspector Saint advised
Black Mesa that it could either use outside contractors to perform the high-voltage work at the
prep plant, or qualify its electricians under MSHA testing (Tr. 75-77, 359-360, 362-364, 368-
369). The inspector related several upcoming test dates to Black Mesa officials and informed
them that he would be returning to the prep plant in approximately three months, in an effort to
afford the electricians ample opportunity to study and pass the test (Tr. 77-80). In keeping with
his inclination to give the prep plant time to qualify its electricians in high-voltage, Inspector Saint
only issued Citation No. 3849999 for violation of section 77.800-2, failure to maintain a high-
voltage record book of monthly examinations, repairs, and adjustments on the 4160-volt circuit
breakers and their auxiliary devices (Tr. 32-33, 78, 81; Gov=t Ex. 5). Black Mesa did not contest
this citation and paid the penalty in full (Tr. 33).

  Inspector Saint returned to the prep plant on September 12, 1996, to conduct a spot

(CAA) inspection (Tr. 82, 86). Respecting abatement of the citation June 25th citation, the

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inspector was told by Gilbert Castillo that Black Mesa did not know where to obtain the required
book, and that none of the prep plant=s electricians had been high-voltage qualified
(Tr. 83). Electing not to issue a Afailure to abate@ citation, Inspector Saint extended the
termination due date to September 17, 1996, and Citation No. 3849999 was subsequently
terminated on that date. However, on September 12th Inspector Saint issued 104(a) Citation No.
3850060, alleging a violation of section 77.103, which described the condition as follows:

          The mine has not provided a [sic] individual that is certified for high voltage at the
   Kayenta Preparation Plant. This condition does not provide for a person to do high
   voltage required checks, or repairs/maintenance on high voltage equipment

(Tr. 85; Gov=t Ex. 1). On the second day of the inspection, Inspector Saint met with Castillo,
Mikesell, Hinkins and the union representative, discussed MSHA requirements for the high-
voltage book and examination and maintenance of high-voltage equipment, and was made aware
that Black Mesa intended to seek adjudication of the electrical qualifications issue (Tr. 87-88, 97-
98). A teleconference ensued, initiated by Inspector Saint, between the prep plant officials and
several MSHA electrical supervisors in Denver and Price, Utah, during which MSHA reiterated
that the electricians would have to obtain high-voltage qualifications in order to perform the high-
voltage electrical work at the prep plant (Tr. 111-113). As a follow-up to this discussion, Don
Gibson sent a Atest packet@ to Black Mesa, containing information about the examination and the
dates that it would be administered (Tr. 368-369; Gov=t Ex. 12).

    Inspector Saint returned to the prep plant on September 17, 1996, and terminated the

citation issued on June 25th for not maintaining a high-voltage book, as well as the citation issued
for not having a high-voltage qualified electrician to perform the high-voltage electrical work at
the prep plant (Tr. 113-116). In order to abate the latter citation, the prep plant enlisted the
services of a high-voltage qualified electrician from the nearby Black Mesa Coal Mine to perform
the monthly high-voltage examinations (Tr. 113-114).

    On January 9, 1997, Inspector Saint made an electrical inspection (CBA) of the prep

plant, accompanied by Castillo and the union representative (Tr. 117-119). A review of the high-
voltage book by the inspector indicated that Castillo, still surface low/medium-voltage qualified,
had been performing the monthly visual examinations of high-voltage equipment and signing the
entries (Tr. 119-120). A review of the qualification cards of the electricians at the prep plant
indicated that they remained qualified in surface low/medium-voltage only (Tr. 122-123).
Consequently, Inspector Saint issued 104(d)(1) (unwarrantable failure) Citation No. 4366052,
alleging a violation of section 77.502, describing the condition as follows:

           Electric equipment was not being frequently examined, tested, and properly
   maintained by a qualified person to assure safe operation at the Black Mesa Pipeline
   Preparation Plant. High voltage (4160 volts) motors and circuit breakers are located
   within the coal preparation plant. Management has failed to provide a qualified person as
   defined in Part 77.103 Subpart I to conduct the required examination. A 104(a) citation #


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   3850060 was issued on 9/12/96 to management for not providing a qualified person to
   conduct high voltage electrical examination.

          A conversation was held between management, miners= rep, and management from
   MSHA. A determination was made that a qualified person is required to conduct
   examination of high voltage electrical equipment. The last check on high voltage
   equipment was done for the month of 9/96. No examination [sic] were done by a person
   qualified to make high voltage checks defined in Part 77.103 Subpart I for the months of
   10/96, 11/96, 12/96. The management stated that they did not intend to use a contractor
   qualified in high voltage to make the required examinations

(Gov=t Ex. 2). Inspector Saint also issued 104(a) non-significant and substantial Citation
No. 4366053, alleging a significant and substantial violation of section 77. 800-2, describing the
condition as follows:

           The operator could not provide a written record of each test, examination, repair,
   or adjustment of all circuit breakers protecting high voltage circuits. This preparation
   plant uses high voltage power to assist in the operation of the plant facility. This same
   type of violation was issued 6/25/96. A conversation was conducted with the following
   management and miners representation on the importance and required [sic] by 77.802-2.
   Also mine management discussed the requirement of 77.502 with Mr. Don Gibson
   electrical supervisor in the Denver district office, Jim Kirk-electrical coal mine inspector
   supervisor located in Price, UT, and Larry W. Ramey, coal mine inspector supervisor
   located in Trinidad, CO, after the issuance of the violation of 77.800-2 issued 6/25/96

(Gov=t Ex. 3). These two citations were also abated by use of a Aloaner@ high-voltage qualified
electrician from the Black Mesa Coal Mine and were terminated on January 10, 1997 (Tr.
132-133).

    Ultimately, on March 4, 1997, prep plant electricians Castillo, Strohmeyer and Begay

passed the MSHA high-voltage examination and became underground/surface high-voltage
qualified (Tr. 335, 530-531, 543-544; Gov=t Ex. 16).

III. Findings of Fact and Conclusions of Law

A. Citation No. 3850060

   1. Fact of Violation

   This citation charges a violation of 30 C.F.R. '77.103, which provides in pertinent part:

           (a) Except as provided in paragraph (f) of this section, an individual is a qualified
   person within the meaning of Subparts F, G, H, I, and J of this Part 77 to perform
   electrical work (other than work on energized surface high-voltage lines) if:


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        ****
            (3) He has at least 1 year experience, prior to the date of the application required
    by paragraph (c) of this section, in performing electrical work underground in a coal mine,
    in the surface work areas of an underground coal mine, in a surface coal mine, in a
    noncoal mine, in the mine equipment manufacturing industry, or in any other industry
    using or manufacturing similar equipment, and he attains a satisfactory grade on each of a
    series of five written tests approved by the Secretary as prescribed in paragraph (b) of this
    section.

          (b) The series of five written tests approved by the Secretary shall include the
   following categories:

           (1) Direct current theory and application;
              (2) Alternating current theory and application;
                 (3) Electric equipment and circuits;
                    (4) Permissibility of electric equipment; and,
                      (5) Requirements of Subparts F through J and S of this Part 77.

           (c) In order to take the series of five written tests approved by the Secretary, an
   individual shall apply to the District Manager and shall certify that he meets the
   requirements of paragraph (a)(3) of this section. The tests will be administered in the Coal
   Mine Safety and Health Districts at regular intervals, or as demand requires.

           (d) A score of at least 80 percent on each of the five written tests will be deemed to
   be a satisfactory grade. Recognition shall be given to practical experience in that 1
   percentage point shall be added to an individual=s score in each test for each additional year
   of experience beyond the 1 year requirement specified in paragraph (a)(3) of this section;
   however, in no case shall an individual be given more than 5 percentage points for such
   practical experience.

         ****

           (g) An individual qualified in accordance with this section shall, in order to retain
   qualification, certify annually to the District Manager, that he has satisfactorily completed a
   coal mine electrical retraining program approved by the Secretary.

    This regulation defines the term Aqualified person@ as it is used in other electrical standards

in Part 77, and sets forth alternative methods by which electricians may become qualified by
MSHA to perform electrical work in surface mines.

     The Secretary essentially argues a violation of the regulation because the prep plant=s

electricians worked on the plant=s high-voltage equipment, despite the fact that they had not taken
the high-voltage examination, were not carrying high-voltage cards, and had not undergone annual

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retraining in high-voltage electricity (Sec. Br. at 15). 2 Furthermore, the Secretary defends her
bifurcated system of testing under section 77.103(b)(3), i.e., a series of written tests for
low/medium-voltage qualification, and a separate, additional written test for high-voltage
qualification (totaling 5 written tests), as a reasonable interpretation of the regulation and
permissible exercise of her duty to qualify electricians under the Act (Sec. Br. at 10-13).

    Black Mesa maintains that the citation is unenforceable, by arguing that the Secretary has

made substantive changes to section 77.103 by instituting a bifurcated testing system that is
inconsistent with the wording of the regulation, without publishing those changes for notice and
comment under the Administrative Procedure Act (Resp. Br. at 8-15).

    Section 77.103 is definitional in nature and prescribes the manner in which the Secretary

qualifies electricians under the Act. The only affirmative duties on the operator, by implication, are
to employ electricians to work in the mines that are qualified to perform electrical work by one of
the three means delineated, and that their qualifications be maintained through annual retraining.
Neither literal reading, nor interpretation of the language requires an operator to employ a high-
voltage qualified electrician at its mine. Because there is no such affirmative duty on the part of
Black Mesa, as set forth in section 77.103, I cannot find that it has violated the regulation.
Accordingly, Citation No. 3850060 is VACATED. However, inasmuch as an analysis of the
remaining two citations requires interpretation of Aqualified person,@ as that term is defined in
section 77.103, respecting the duties authorized by the levels of electrical qualification, section
77.103 will be discussed more fully below.

B. Citation No. 4366052

   1. Fact of Violation

   This citation charges an unwarrantable violation of 30 C.F.R. '77.502, which provides as

follows:

          '77-502 Electric equipment shall be frequently examined, tested, and properly
   maintained by a qualified person to assure safe operating conditions. When a potentially
    2
        MSHA electrical qualification cards issued under section 77.103 are as follows:

        underground low/medium-voltage is orange;
        surface low/medium-voltage is green; and
        underground/surface high-voltage is white (Tr. 426-427, 434-435).




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   dangerous condition is found on electric equipment, such equipment shall be removed from
   service until such condition is corrected. A record of such examinations shall be kept.


          '77-502-1 A qualified person within the meaning of '77.502 is an individual who
   meets the requirements of '77.103.

           '77.502-2 The examinations and tests required under the provision of this '77.502
   shall be conducted at least monthly.

    In resolving the question of whether Black Mesa was properly cited for violating section

77.502, it is necessary to obtain a definition of Aqualified person@ from the wording of section
77.103. If the language is clear, the regulation=s terms must be enforced as written. Island Creek
Coal Co. 20 FMSHRC 14,18 (January 1998). If the language is ambiguous, courts have deferred
to the Secretary=s interpretation of the regulation. Id. at 18-19, citing Energy West Mining Co. v.
FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994). The Commission=s review requires a determination
of whether the Secretary=s interpretation is reasonable. Id. at 19, citing Energy West at 463, citing
Secretary of Labor on behalf of Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1439 (D.C.
Cir. 1989). Despite a permissible interpretation, the Secretary cannot prevail unless
constitutionally-based due process has been accorded to the operator, through fair notice of the
conduct prohibited or required. General Electric Company v. E.P.A., 53 F.3d 1324, 1328-29
(D.C.Cir. 1995); Island Creek at 24. The Commission applies an objective test in determining
whether the operator has been afforded fair notice, i.e., Awhether a reasonably prudent person
familiar with the mining industry and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the standard.@ Island Creek at 24, citing
Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990).

    Section 77.103 defines Aqualified person,@ as the term is used in Subparts F (Electrical

Equipment-General), G (Trailing Cables), H (Grounding), I (Surface High-Voltage Distribution),
And J (Low- and Medium-Voltage Alternating Current Circuits) of Part 77, by prescribing the
manner in which an individual becomes qualified to perform electrical work in surface mines (other
than work on energized surface high-voltage lines). Of the three alternative courses that may be
pursued to become qualified, the one applicable to this case is cited at section 77.103(a)(3), i. e.,
possessing at least one year of electrical experience in a coal mine or related area, and performing
satisfactorily on a series of five written tests approved by the Secretary. The wording of the
regulation makes no distinction between levels of qualification and the parameters of electrical
work that are authorized thereunder, nor is it inclusive of the subject categories that must be
covered by the five written tests. To that extent, I find the wording of
the regulation ambiguous.

   The dispute between the parties arises out of differing interpretations as to the duties

authorized by low/medium-voltage electrical qualification. I do not find, however, as Black Mesa
contends, that the Secretary has made substantive changes to the regulation. The Secretary was

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given reasonable discretion in determining the means of qualifying electricians to work in the
mines, by the authority to approve and administer the tests, which subject matter need not be
limited to the five categories set forth in the regulation. Based on a determination that the
inherent properties and consequences of exposure to high-voltage electricity are far more
dangerous and destructive than low/medium-voltage (Tr. 74, 89, 90-96, 108-111, 237-243, 249-
250), the Secretary has separated the series of four written tests for low/medium-voltage
qualification from the one written high-voltage test (Tr. 484-486). Applicants for electrical
qualification are put on notice that successful scoring on the low/medium-voltage test is a
prerequisite to taking the high-voltage exam, by cover letter accompanying the application, which
includes the following information:

            A person may become qualified to perform electrical work in three categories:
    underground low and medium voltage, surface low and medium voltage, and high voltage
    (surface and underground). An applicant will be required to satisfactorily complete the
    requirements for either the surface or underground low and medium voltage qualification
    prior to being allowed to become qualified to perform electrical work on high-voltage
    circuits and equipment (emphasis added)

(Govt. Ex. 12; see also Resp. Ex. 4 (Ex. B); Tr. 311-313). Moreover, an applicant is required to
indicate which of the three levels of qualification for which he is applying, and if the level is high-
voltage, that he has a current surface or underground low/medium-voltage qualification card (Gov.
Exs. 17, 18, 19; Tr. 473-474). I find that the Secretary=s bifurcated testing program of qualifying
electricians reflects a reasonable interpretation of her authority under section 77.103, that this
interpretation is consistent with the Act=s underlying purpose of promoting the health and safety of
miners, and that operators and applicants are duly notified of the separation between low/medium-
and high-voltage testing and qualification, and what functions the qualification levels permit.
Accordingly, I find that a reasonably prudent person would have recognized that only electricians
possessing underground/surface high-voltage qualifications are permitted to work on surface high-
voltage electrical circuits and equipment.

    In this regard, the record clearly establishes that, at no time were the electricians at the prep

plant confused or misinformed as to their electrical qualifications, and at all times prior to applying
for and passing the high-voltage test, Black Mesa knew that its electricians all held surface
low/medium-voltage qualification cards (Tr. 497-498, 522-523, 542-543; Govt Exs. 6, 16; Resp.
Ex. 2).

    Plant Manager Andrew Mikesell stated Black Mesa=s consistently held position that its prep

plant electricians were authorized to maintain the plant=s high-voltage equipment, by testifying as
follows:

             From the very start, we have maintained that our electricians were qualified
    under 77.103. MSHA had issued them a green card which allowed them to work
    on all electrical circuits that were not energized. The law specifically says that they


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   are qualified to work on all subparts...(f) through (j) if they are not energized. And
   that has always been our--we=ve always maintained that. Our electricians do not
   work on energized circuits.
        ****

           We have considered 77.104 applied to energized high-voltage. And we
   never worked on energized high-voltage, so we=ve always felt that by passing the
   five-part test, our electricians were qualified for all the work they were doing

(Tr. 498-499; see also 64-66, 154-155, 512-513, 516-519, 551-552, 556-557). Section 77.104, to
which Black Mesa makes reference, requires the following:

            An individual is a qualified person within the meaning of '77.704 of this
   part for the purpose of repairing energized surface high-voltage lines only if he has
   at least 2 years experience in electrical maintenance, and at least 2 years experience
   in the repair of energized high-voltage lines located on poles or structures.

    Section 77.104 is narrow in scope, pertaining to highly specialized work on energized

surface high-voltage lines located on poles and structures, requires two years apprenticeship, and
is very closely regulated (Tr. 232, 306-308). Because mine operators currently use contractors for
construction and maintenance of power lines and substations, it is uncommon for a mine to employ
an electrician holding this qualification (Tr. 269-270). The standard relates to high voltage lines,
rather than circuits and equipment. The wording implies that high-voltage qualified electricians
without specialized training can work on de-energized high-voltage lines. Section 77.103,
however, pertains to circuits and equipment (Tr. 308). The language of section 77.104 does not
make reasonable an interpretation that section 77.103 permits all levels of qualified electricians to
work on all levels of de-energized equipment and circuits. To construe section 77.103 in this
manner would render the varying properties of electrical voltage categories and the qualification
levels obtained through MSHA testing meaningless. AQualified person,@ as defined by this
standard, only becomes meaningful when correlated with electrical voltage categories, and because
inadequate maintenance of high-voltage electrical equipment/circuits may subsequently jeopardize
the safety of other miners when energized, for purposes of this decision, it is immaterial whether
the equipment/circuit is de-energized when the electrician works on it.

   Inasmuch as the evidence indicates that the high-voltage motors and switchgear at the prep

plant were being examined, tested and maintained by electricians not qualified to perform these
functions, I find that Black Mesa has violated section 77.502. Accordingly, Citation No. 4366052
is AFFIRMED.

  2. Significant and Substantial

     Citation No. 5366052, as originally issued by Inspector Saint on January 1, 1997,

designated the violation of section 77.502 Asignificant and substantial@ (AS&S@), due to Black

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Mesa=s Aunwarrantable failure@ to adhere to the standard (Gov=t Ex. 2). Pursuant to a health and
safety conference held on February 7, 1997, MSHA Conference and Litigation Representative Ned
Zamarripa modified the 104(d) citation to a 104(a), non-S&S citation (Resp. Ex. 1). On May 22,
1997, on advice from the Secretary=s representative, Margaret Miller, Inspector Saint nullified Ned
Zamarripa=s modification, by modifying the citation back to a 104(d), S&S citation (Gov=t Ex. 2;
Tr. 199-209). The citation also alleges that the violation was caused by Black Mesa=s high
negligence. The Secretary, through Attorney Miller, proposed a penalty of $2,500.00, as opposed
to MSHA=s original proposal of $150.00.

     Section 104(d ) of the Act designates a violation S&S when it is Aof such nature as could

significantly and substantially contribute to the cause and effect of a coal or other mine safety or
health hazard.@ A violation is properly designated S&S Aif, 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.@ Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set forth the four

criteria that the Secretary must establish in order to prove that a violation is S&S under National
Gypsum: 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 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. See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-104 (5th Cir.
1998), aff=g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria). Evaluation of
the third criterion, the reasonable likelihood of injury, should be made in the context of Acontinued
mining operations.@ U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1998). Moreover,
resolution of whether a violation is S&S must be based Aon the particular facts surrounding the
violation.@ Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1998).

      Inspector Saint testified that the prep plant only used a Aloaner@ high-voltage electrician to

abate the citation previously written on September 12th for violation of section 77.103, and surface
low/medium-voltage qualified electrician, Gilbert Castillo, had been making the monthly
examinations of the high-voltage equipment and signing the high-voltage book (Tr. 123-125).
He explained that he had characterized the violation of section 77.502 S&S because electricians,
unqualified to perform the work that they had been undertaking on the plant=s high-voltage
equipment, were creating a dangerous condition not only for themselves, but for others working
around them (Tr. 99). He further opined that he believed the mine to be lucky that a fatality or
permanently disabling accident had not occurred already, but that it was likely to happen sooner or
later, if the practice continued (Tr. 130).

   Based on the cumulative testimony regarding the bridging capabilities and destructive,

unforgiving peculiarities of high-voltage electricity, and the potential danger of even the slightest
mistake or unclean work-habit, I find that the violation created a discrete safety hazard. Based on

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the lack of training specific to the intricacies of work on high-voltage electrical equipment, I find
that there was a reasonable likelihood of serious injury, including death, to an unqualified
electrician servicing high-voltage electrical equipment, or to others working around or coming into
contact with the equipment. In so finding, I have considered the evidence that the prep plant had
been utilizing low/medium-voltage qualified electricians to maintain its high-voltage electrical
equipment for a number of years, but am persuaded that the danger is ever present and lack of
current training in high-voltage electricity amounted to an accident waiting to happen.
Accordingly, I find that the violation was S&S.

  3. Unwarrantable Failure

     Inspector Saint testified that he attributed the violation to Black Mesa=s Aunwarrantable

failure@ to comply with section 77.502 because Awith all the conversations with Mr. Gibson,
myself, I felt that we went way beyond, and I felt personally I went way beyond trying to bring this
to a close without blowing it out of proportion. I felt that they were not trying to meet or work
with me anymore. At this time, I believed that they knew better or should have known, by past
conversations and they elected not to@ (Tr. 125).

    Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.

Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987). Unwarrantable failure is
characterized by such conduct as Areckless disregard,@ Aintentional misconduct,@ Aindifference,@
or a Aserious lack of reasonable care.@ Id. at 2001-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (February 1991).

     I am persuaded that Black Mesa held a reasonable, good faith belief, although erroneous,

that as long as its electricians worked on de-energized electrical equipment and circuits, the
voltage level was immaterial. I reach the conclusion that this belief was reasonable, despite a
finding that Black Mesa understood its electricians to be surface low-medium qualified only, based,
in part, on evidence that Black Mesa had previously made this Ade-energized equipment argument@
to other MSHA inspectors, who had apparently been confused also as to the definition of Aqualified
person@ under section 77.103, and, therefore, had failed to require that the prep plant=s electricians
become high-voltage qualified (Tr. 513, 536-537, 542-543, 557). Therefore, I do not find that the
Secretary has proven that the violation was the result of Black Mesa=s unwarrantable failure.

  4. Penalty

     While the Secretary has proposed a civil penalty of $2,500.00 (originally specially assessed

at $150.00), the judge must independently determine the appropriate assessment by proper
consideration of the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. '820(j).
See Sellersbueg Co., 5 FMSHRC 287, 291-292 (March 1993), aff=d 763 F.2d 1147
(7th Cir. 1984). While Citation No. 3849999 was not contested, it was the precursor to the instant
citations and its history provides some indication that the penalty proposed by the Secretary was
based on an assessment by Inspector Saint and Attorney Miller that Black Mesa was not Aworking

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with@ the inspector and would be seeking an interpretation of section 77.103 through Athe court@
(See Tr. 85-86, 88, 97-98, 104-108, 208-209). I find that the Secretary has sought to punish
Black Mesa through the imposition of higher penalties (the penalty proposed in vacated Citation
No. 3850060 was modified from $50.00 to $1,500.00). Failure to cooperate is not a valid basis to
conclude that a violation is more hazardous or that its occurrence is attributable to a higher degree
of negligence, warranting an elevation in penalty. A more appropriate course for MSHA to have
followed back in September 1996, upon the initial determination that Black Mesa had no intention
of obtaining high-voltage qualification for its electricians, may have been issuance of a 104(b)
order for failure to abate the June 25th citation. It appears from the evidence, however, that
Inspector Saint was not of the opinion that the danger posed by the lack of high-voltage qualified
electricians was particularly grave or immediate, since he was still of a mind to give Black Mesa
considerable additional time to take the high-voltage test, and the citation that he subsequently
issued under section 77.103 was characterized neither S&S nor unwarrantable.

    Black Mesa employs 36 individuals over three shifts and is, therefore, a small operator.

Because no violation history has been available since the mine changed hands in August 1996, its
history of previous violations is construed in the light most favorable to the operator (See Gov=t
Br. at 28). As stipulated, the proposed civil penalty will not affect Black Mesa=s ability to continue
in business.

     The remaining criteria involve consideration of the gravity of the violation and the

negligence of Black Mesa in causing it. I find the gravity of the violation to be serious, since the
potential for grave injuries to miners, including high likelihood of death caused by high-voltage
electrocution, is well-documented by the record. Considering that Inspector Saint failed to identify
with specificity any unsafe practice of the electricians in examining, testing or servicing the high-
voltage equipment, I ascribe moderate negligence to Black Mesa (Tr. 546, 561; see Resp. Ex. 1).
While the citation was abated within the time-frame given, I find that it was not abated in good
faith, based on evidence that the prep plant borrowed a high-voltage qualified electrician to abate
the citation only, and thereafter returned to having it=s low/medium-qualified electricians maintain
the high-voltage equipment. Therefore, having considered Black Mesa=s small size, insignificant
history of violations, ability to stay in business, seriousness of the violation, failure to abate in
good faith and moderate negligence, I find that a penalty of $400.00 is appropriate for this
violation.

  C. Citation No. 4366053

   1. Fact of Violation

     This citation charges a non-S&S violation of 30 C.F.R. '77.800-2, a standard promulgated

under Subpart I of Part 77-Surface High-Voltage Distribution. Section 77.800-2 provides as
follows:

           The operator shall maintain a written record of each test, examination, repair, or


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   adjustment of all circuit breakers protecting high-voltage circuits. Such record shall be
   kept in a book approved by the Secretary.

    The Secretary points out that this is the second violation of section 77.800-2 issued by

Inspector Saint, the first having been issued on June 25, 1996, as discussed previously. To abate
the former citation, Black Mesa had put into use a book approved by the Secretary, but according
to Inspector Saint, while the required monthly visual inspections of the stationary high-voltage
equipment were being conducted, they were not being conducted and recorded by a high-voltage
qualified electrician (Tr. 210-215). For the reason as previously discussed, that the scope of
electrical work authorized by MSHA qualification levels corresponds to the electrical voltage
categories, the Secretary has proven a violation of the standard. Accordingly, Citation No.
5366052 is AFFIRMED.

   2. Penalty

    Addressing the six penalty criteria set forth in section 110(i), as discussed above, Black

Mesa is a small operator, was cited approximately six months earlier for the same violation but
otherwise has an insignificant history of prior violations, and the parties have stipulated that the
proposed penalty of $200.00 will not affect Black Mesa=s ability to continue in business.
Respecting consideration of the gravity criteria, I find improper maintenance of the high-voltage
book to be far less egregious than unqualified electricians working on high-voltage equipment and,
therefore, find that the violation is not serious. Because Black Mesa had been made aware of the
requirements of the standard, and failed to abate the citation in good faith for the same reasons
discussed above, I ascribe moderate negligence to Black Mesa. Accordingly, having considered
Black Mesa=s small size, insignificant history of violations, ability to stay in business, non-serious
nature of violation, failure to abate in good faith and moderate degree of negligence, I find that a
civil penalty of $100.00 is appropriate.

                                   ORDER

   Accordingly, Citation No. 3850060 is VACATED, Citation Nos. 4366052 and 4366053

are AFFIRMED, and Black Mesa is ORDERED TO PAY civil penalties of $500.00 within
30 days of the date of this decision. Upon receipt of payment, these cases are DISMISSED.

                                                  Jacqueline R. Bulluck
                                                  Administrative Law Judge

Distribution:

Margaret A. Miller, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway,

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Suite 1600, Denver, CO 80202-5176 (Certified Mail)

Gregory J. Leisse, Esq., 400 East Monroe Street, Phoenix, AZ 85004 (Certified Mail)

/mh

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