Day Mining Incorporated

Plain-English summary

Day Mining operated a coal mine where a transformer was being prepared for removal from an energized substation. The ALJ found that the work and inspection activities inside the substation were electrical work requiring a qualified person, and that the people entering the area were also required to wear hard hats. During the visit, an electrical contractor made contact with an overhead wire and died, and the Judge found that the regulatory violations contributed to the danger. Both violations were affirmed, with low negligence findings and a total civil penalty of $10,000.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.103(g); 30 C.F.R. § 77.501; 30 C.F.R. § 77.17010(d)
• Outcome: Both violations were affirmed, and Day Mining was ordered to pay a $10,000 civil penalty.
• Key point: Entry into an energized substation for inspection, measurement, planning, or similar activity can constitute electrical work, and the hard-hat rule applies to electrical hazards.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                           OFFICE OF ADMINISTRATIVE LAW JUDGES
                                    2 SKYLINE, Suite 1000
                                    5203 LEESBURG PIKE
                               FALLS CHURCH, VIRGINIA 22041

                                      September 17, 2002

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2001-66
Petitioner : A.C. No. 46-05437-03621
v. :
:
DAY MINING INCORPORATED, :
Respondent : Day Mining Inc.

                                          DECISION

Appearances: M. Yusuf M. Mohamed, Esq., U.S. Department of Labor, Office of the Solicitor,
Arlington, Virginia, for the Petitioner;
David J. Hardy, Esq., Heenan, Althen & Roles, LLP, Charleston, West Virginia,
for the Respondent.

Before: Judge Schroeder

                                         Introduction

    This case is before me on a Petition by the Secretary of Labor for the assessment of a

Civil Penalty for the alleged violation of mine safety regulations. The Petition alleged two
violations for which the Secretary proposed a total Civil Penalty of $60,000.00. After
prehearing development, a hearing was held in Charleston, West Virginia, on March 5 and 6,
2002. Following the hearing, both sides filed written arguments. The entire record has been
carefully considered. Finding of fact and conclusions of law appear below.

      The regulatory provisions at issue in this case are the following:

      30 CFR § 77.501

             Electric distribution circuits and equipment; repair.

      No electrical work shall be performed on electric distribution circuits or equipment,
      except by a qualified person or by a person trained to perform electrical work and to
      maintain electrical equipment under the direct supervision of a qualified person. Opened
      and suitably tagged by such persons.


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   30 CFR § 77.1710(d)

                   Required Protective Equipment

           (d) A suitable hard hat or hard cap when in or around a mine or plant where
           falling objects may create a hazard. If a hard hat or hard cap is painted,
           nonmetallic based paint shall be used.

   My task is to determine whether either or both of these regulations was violated and, if

so, what the appropriate penalty should be under the circumstances.

   There appear to be two critical issues which drive the major conclusions to be drawn; (1)

was “electrical work” being performed at the time in question, and (2) were either of the persons
involved in any “electrical work” required to wear hard hats. The factual findings below are
directed primarily at those questions.

                                     Factual Findings

    During January 2000, Day Mining experienced difficulties with one of its electric

transformers. Tr. 361. The transformer was part of the Wet Branch substation. Tr. 28.
Management decided to ship the transformer to a service facility for repairs. A trucking company
was hired to haul the transformer; a crane operator was hired to lift the transformer out of the
substation onto the truck; and an electrical company was hired to disconnect the transformer
from the electric power network to allow the transformer to be hoisted. Power to the
malfunctioning transformer was terminated but the remainder of the substation continued to be
energized. Removal of the transformed was scheduled for February 21, 2000, a Monday.

    Day Mining management took the form of Richard Busick, Project Manager, whose

office was located a short drive from the Wet Branch substation. He made arrangements for the
several contractors required for removal and repair of the transformer. Tr. 414. Of particular
importance to this case, Mr. Busick decided to use Williams Electric for the disassembly of the
transformer and assistance to the crane operator in the hoisting process. Steve Williams was the
active employee for Williams Electric, in fact had been the owner of Williams Electric until a
short time prior to the events of interest in this case. Williams Electric was chosen for this job by
Mr. Busick because of Mr. Williams’ reputation in the area for quality electrical work. There is
no suggestion in this case that Mr. Williams was anything other than a highly competent and
knowledgeable electrical contractor. In fact, however, he had allowed his certification as a mine
electrician lapse because of his failure to renew by taking continuing education. He had not been
certified for almost 20 years prior to the accident which gave rise to this claim. Tr. 48.
Sec. Ex. 20. Mr. Busick, likewise, had been certified as a mine electrician and had allowed his
certification to lapse.

   The weight of the testimony suggests that for the 20 years since his certification was

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allowed to lapse, Mr. Williams had been employed in the construction and repair of electrical
systems that were not energized and for which a certification under the regulations of the Mine
Safety and Health Administration was not required. Work on or around an energized electrical
system is a very different challenge from work on an electrical system that will be energized by
someone else. The Wet Branch substation is surrounded by metal fencing topped by barbed wire
and covered with signs warning of “High Voltage” in case anyone failed to notice the distinct
hum associated with high voltage transformers. Tr. 92. Mr. Busick never asked Mr. Williams
for evidence of mine electrical certification and Mr. Williams never offered a certification or
asked if certification would be required. Mr. Busick testified he was shocked later to discover
that Mr. Williams had allowed his certification to lapse so long before this work.

    On the Friday morning before the scheduled removal of the Wet Branch transformer,

Mr. Williams paid a visit to Mr. Busick at his office. They discussed a number of subjects,
including the upcoming transformer removal, until Mr. Williams asked Mr. Busick to drive him
up to the substation to take a look at the equipment. Mr. Williams had identified several
potential work problems which might confront him on Monday and he wanted to satisfy himself
as to the condition of the site. He expressed particular concern with the fastenings which connect
the top of the transformer to the overhead wires. Tr. 235, 370.

    Mr. Busick drove his truck out to the substation with Mr. Williams. Neither of them

took any tools or plans concerning the work. Tr. 491. Neither of them wore a hard hat. They
observed the substation from the outside for a few minutes and discussed the wooden cross-arms
which carried wires to the various transformers. Some of the cross-arms were to be disassembled
and removed to facilitate the crane lift of the transformer. Mr. Williams argued for a while that
the transformer could be removed without removing the cross-arms but Mr. Busick was firm that
the crane operator needed the cross-arms removed.

    Mr. Williams then asked Mr. Busick to open the gate to the substation so he could enter

and look more closely at the details of the equipment. Mr. Busick initially stayed out of the
substation while Mr. Williams entered and walked around the equipment. Tr. 379.
Mr. Williams continued to look up at the cross-arms and the wire connection points. Finally,
Mr. Busick entered the substation to point out to Mr. Williams some small parts which earlier
had been removed from the transformer by other workers. Mr. Williams by this time was out of
sight further into the substation. Mr. Busick then heard “a sizzle, hard sound, and a grunt.”
Tr. 382 He moved around the transformer in time to see Mr. Williams fall to the ground on the
other side of the transformer. Tr. 432. Mr. Busick attempted first aid but without success.
Subsequent examination showed that Mr. Williams died as a result of a high voltage contact to
the back of his head. A photograph of his baseball cap showed a burn to the back of the head.

    Neither Mr. Williams nor Mr. Busick were wearing hard hats when they entered the

substation although both had such hats available without inconvenience. Use of a hard hat in the
mine industry is typical and not considered burdensome.

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    The electrical line which more likely than not was the source of injury to Mr. Williams

was located about 13 feet above ground. Mr. Williams was just over 6 feet tall. The only way he
could have contacted the wire would have been to climb the transformer on cooling fins on the
outside of the transformer. The first step in climbing the fins would have been over 30 inches
from the ground. The ware was located in compliance with the applicable industry standard.
Tr. 129, 263. The fins were not designed to serve as a ladder but would not be damaged by
climbing and were accessible by a reasonably agile person. Tr. 33. The wire was not hidden or
concealed. It would have been visible to Mr. Williams as he looked at the overhead cross-arms.
Mr. Williams climbed the transformer without tools and without an intent to perform current
physical work. His apparent intent was to take a closer look at the upper connections between
the transformer and power wires.

    An expert witness employed by the Mine Safety and Health Administration testified in

his opinion if Mr. Williams had been wearing an ordinary hard hat when he contacted the wire,
he would not have received a serious injury. I accept this opinion as reasonably supported by
scientific evidence and analysis.

                                          Analysis

   Electrical Work in the Substation

    The Secretary has the initial burden of showing evidence of each of the elements of the

claims alleged. The jurisdictional facts are not in dispute. It is also undisputed that neither Mr.
Williams nor Mr. Busick satisfied the requirements for a “qualified person” as that phrase is used
in 30 C.F.R. §77.501 that requires annual recertification under 30 C.F.R. §77.103(g). The issue
is whether the activities conducted by Mr. Williams and Mr. Busick within the Wet Branch
substation on the morning of February 18, 2000, constituted “electrical work” within the meaning
of the regulation. If “electrical work” was performed, the required qualified persons were not
present and the regulation was violated.

    The words used in 30 C.F.R. §77.501, and the context of the regulation in a subpart

entitled Electrical Equipment, imply technical meanings which the Secretary is entitled to
interpret. That interpretation must be given deference in this forum unless it is patently
unrealistic. Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123 (D.C. Cir. 2001).
The Secretary has made only limited use of this authority to supply useful interpretations of this
regulation. Exhibits 14 and 18 supplied by the Secretary contain almost the same words in
describing the intention of the Secretary in applying this regulation. What can be gleaned from
these interpretations is the intention to apply the regulation broadly to separate insufficiently
trained persons from a substantial hazard. I find it particularly significant that the interpretation
includes design work as part of electrical work. I interpret design work to include activities like
measurement, inspection, comparison, simulation and similar activities with very limited use of
tools other than the hands and the brain. Respondent’s argument that no work was contemplated
by Mr. Williams and Mr. Busick because they did not bring tools with them is overly simplistic.

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That Mr. Williams died without a tool in his hand is very hard evidence of the hazard involved
even without tools.

     I conclude that Mr. Williams went to the Wet Branch substation to perform electrical

work within the meaning of 30 C.F.R. § 77.501 in the form of inspection, measuring, planning,
simulation, and alternative analysis. The substation was energized at the time of his visit and
constituted a work site subject to the regulation. In the course of performing this electrical work
he climbed the transformer as he would have done many times in working on nonenergized
facilities. During that climb his head contacted a hot wire and he died.

    Mr. Busick argued in his testimony with some force that there was no way he could be

expected to have anticipated that Mr. Williams would climb the transformer out of a safe area
and into danger. But his argument misses the point of designating an area as requiring special
qualifications to enter. The area is so hazardous there are only in two ways can it properly be
entered; (1) by a qualified person or people performing under the direct supervision of the
qualified person, or (2) by a person who has a specific, narrowly defined job to do in a safe zone
and then withdraw. A person entering an electric substation must either know in detail what is
safe or must act very specifically on the instructions of someone who does know what is safe.
Mr. Williams, by definition under the regulation, did not know what was safe in an energized
substation. He should not have been permitted to walk around the inside of the substation as
though he did know.

   Hard Hat Use

    It is not seriously disputed that the Wet Branch substation was free of dangers from

falling objects. There was some testimony as to the possibility that a cracked wooden overhead
cross-arm might constitute a falling hazard, but no solid conclusions can be reached. There was
also testimony speculating as to the hazards from an unanticipated electrical explosion, as in the
event of a massive power surge. The issue as to hard hats is whether an energized substation
constitutes an area of electrical hazard that would require the use of hard hats, without regard to
overhead risks. That it is likely that Mr. Williams might be alive today if he had worn a hard hat
on February 18, 2000, does not affect the legal question of whether a hard hat was required.

   In applying a regulation to a particular set of facts, I am required to apply the plain

meaning of the words used rather than to attempt to imply intended meanings imperfectly
expressed. On the other hand, I am required to use all of the language of the regulation that can
be reasonably applied rather than to pick and chose language to reach a particular result. I am
required to give purpose and meaning to the entire regulation to the extent possible. The words
should be given their natural meaning rather than a meaning known only to regulation writers.
McCuin v. Secretary of Health and Human Services, 817 F.2d 161 (1st Cir. 1987)

    In this context it is important to note the words used in the second sentence of the

regulation; “If a hard hat or hard cap is painted, nonmetallic based paint shall be used.” The

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conjunction of hat and nonmetallic paint cries out a concern with electrical hazards of some sort.
The second sentence has no reasonable function in the regulation if it does not relate to electrical
hazards. A falling rock does not care about the kind of paint used on the hard hat it hits. A
reasonable person reading this regulation would be prompted to ask the question, “Does this also
apply to solely electrical hazards?”

    The answer to this question is readily found in the Mine Safety and Health

Administration’s Policy and Procedure Manual (PPM) as it relates to 30 C.F.R. §77.17010(d).
G. Exh. 15. The PPM very unequivocally says the purpose of the regulation includes “to protect
miners against electrical shock or burn.” This clear interpretation of the inartful language of the
regulation is entitled to deference from the Commission. The effect of this interpretation is not
avoided by the rules requiring fair notice of prohibited conduct. Comparison of the hard hat
regulation with the regulation at issue in Morton International, Inc. v. Secretary of Labor, 18
FMSHRC 533 (April 1996) illustrates the principal of fair notice. In Morton, supra, the
Commission was dealing with a regulation on mine ventilation. The Secretary argued that the
regulation limiting methane levels applied to abandoned areas of a mine. This interpretation was
contrary to express language of the regulation as amended. The contrary interpretation of the
regulation attempted by the Secretary depended on a reader understanding an error expressed by
the Secretary in the preamble to the regulation that amended the original regulation. The
Commission found this to not constitute fair notice of the prohibited conduct, i.e., the failure to
ventilate the abandoned mine.

    In Morton the Commission held only that “fair notice” cannot be implied from the

possibility that a person might notice an error in a preamble which would infer an intent contrary
to the expressed intent in a regulation. No such convoluted search for meaning is necessary here.
The regulation, by it’s express terms, is concerned with electrical hazards and a publication
generally available to the public (now accessible through the MSHA Internet Web Site) makes
the required (or prohibited) conduct crystal clear.

    I find that 30 C.F.R. §77.17010(d) applies to persons performing electrical work in an

energized substation of a coal mine. The regulation requires the use of a hard hat. That
regulation was violated at the time Mr. Williams and Mr. Busick stepped inside the Wet Branch
substation.

   Appropriate Penalty

   My task now is to apply the statutory criteria for penalty amounts to the facts as I have

found them above. It is undisputed that the mine was in an active but unproductive status. The
Secretary made no effort to show a significant history of safety regulation violations. There was
no evidence produced to suggest that a Civil Penalty in the amount proposed by the Secretary
would compromise the ability of the Respondent to continue in business.

                                            900


     This leaves three factors to be considered; degree of negligence, gravity of the risks, and

efforts to abate or mitigate the violations. The principles established by the Commission for
consideration of these factors are well known. See, for example, Secretary of Labor v. Gunther-
Nash Mining, 20 FMSHRC 1205 (Oct. 1998)

   Negligence

   The key to analysis of negligence is the standard of care demanded of a coal mine

operator. The mining business is considered hazardous. People engaged in the business of
mining must be constantly alert for risks of injury. Actions which might be considered merely
careless elsewhere are significant negligence in a mining context.

    Day Mining made at least two mistakes in connection with the visit by Mr. Williams to

the Wet Branch substation. First, there was a failure to verify the qualifications of Mr. Williams
to be in the substation while it was energized. Because this failure began a cascade of
consequences, what would otherwise seem mere careless in light of Mr. Williams long history of
electrical work was really negligence. Since the circumstance of spur-of-the-moment planning
by an assumed expert is a highly unusual event, I find the negligence is low rather than moderate.

   Gravity

     A violation of a mine safety regulation is “significant and substantial” if the violation

creates a situation in which there is a reasonable likelihood of an injury of a reasonably serious
nature. In my judgement, an energized substation is a place where only serious injuries are
experienced, i.e., the knowledge or luck of the person in the substation either results in no injury
at all or in a serious injury with real risk of death. The injury suffered here, obviously, was quick
and fatal.

   Abatement or Mitigation

    Because electrical transformers do not need replacement on regular intervals, abatement

or mitigation specific to the Wet Branch substation is difficult to identify. The record is empty of
any suggestion that Day Mining has implemented any generic mitigation measures to give greater
assurance that the qualifications of contractors will be more closely examined in the future. The
record is likewise empty of any suggestion that hard hats will be required in electrical Day
Mining substations. It is sufficient to say that the Respondent received no credit at all from this
issue.

   Penalty Amounts

    While the conduct of Day Mining certainly resulted in a violation of mine safety

regulations, the combination of unique circumstances and benign motivation makes the amounts
proposed by the Secretary seem excessive. The Secretary offered nothing but oratorical outrage

                                            901

to support the amounts. The purpose of a Civil Penalty is to focus management attention on
hazard prevention by economic coercion. The amount of the Civil Penalty should not be related
in any way to the extent or character of the injury which resulted from the violation. In my
judgement that purpose would be best served by a Civil Penalty of $5,000.00 for each of the two
violations.

                                        ORDER

  For the reasons given above, it is ORDERED that the Respondent pay a Civil Penalty of

$10,000.00 within 60 days of the date of this Order. The parties are each to bear their own costs.

                                         Irwin Schroeder
                                         Administrative Law Judge

Distribution:

Yusuf Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)

David J. Hardy, Esq., Heenan, Althen & Roles, LLP, P.O. Box 2549, Charleston, WV 25329
(Certified Mail)

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