Secretary of Labor, MSHA v. US Silica Company

Plain-English summary

MSHA cited an unlabeled two-switch breaker box in a paint trailer at US Silica's Berkeley Plant. Judge David Barbour did not decide whether the box was a principal power switch under section 56.12018. Instead, he found that the circuits could be readily identified by location because visible wiring and conduit aligned each switch with the nearby lights and receptacle it controlled. That finding placed the switches within the standard's express exception to labeling. US Silica received summary decision, and the citation and proposed $100 penalty were vacated.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.12018
• Outcome: Summary decision was granted to US Silica, and Citation No. 8705547 and its proposed $100 penalty were vacated.
• Key point: A principal power switch need not be labeled when its controlled circuits can be readily identified from the switch's location and visible connections.

Full text (FMSHRC public release)

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FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE:
202-434-9953 / FAX: 202-434-9949

February 25, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Petitioner,

v.

US SILICA COMPANY

Respondent,

CIVIL PENALTY PROCEEDNG

Docket No. WEVA 2013-425

A.C. No. 46-02805-309429

Mine: Berkeley Plant

ORDER
GRANTING US SILICA COMPANY’S MOTION FOR SUMMARY DECISION

In this
civil penalty proceeding arising under sections 104 and 110(i) of the Federal
Mine Safety and Health Act of 1977, as amended (30 U.S.C. §§814, 820(I)), the Secretary of Labor (“Secretary”) on behalf of his Mine Safety
and Health Administration (“MSHA”) petitions for the assessment of a civil penalty of $100
for an alleged violation of 30 C.F.R. §56.12018, a mandatory safety
standard for the nation’s metal and nonmetal mines that
requires the identification of certain power switches.[1]
The Secretary alleges that on October 11, 2012, at the Berkley Plant of US
Silica Company[2] (“US Silica” or “the company”), a breaker box in the plant’s paint
trailer “was not labeled to show what circuits they controlled.”[3] Citation No. 8705547. The inspector found that the cited
condition was unlikely to result in injuries that could reasonably be expected
to cause lost workdays or restricted duty and that the alleged violation was
due to the company’s moderate negligence. Id. US
Silica answered by denying it violated the standard and asserting that Citation
No. 8705547 should be vacated.

The
Commission’s Chief Administrative Law Judge assigned the matter to the
Court, and the Court ordered the parties to confer regarding possible
settlement. When it became clear that a settlement could not be reached, the
Secretary’s counsel, with the agreement of the company’s counsel, suggested to the Court that the matter be
resolved through cross motions for summary decision.[4]
The Court agreed. Counsels submitted their motions and, at the Court’s request, provided the Court with additional information.
Based on the motions and the additional information, the Court enters the
following decision granting US Silica’s motion and denying the
Secretary’s motion.

SUMMARY DECISION IN GENERAL

Pursuant
to the Commission’s rule, a party moving for summary
decision is entitled to

judgement in its favor
if, based upon the record before the court, (1) there is no genuine issue as to
any material fact; and (2) the moving party is entitled to a summary decision
as a matter of law. 29 C.F.R. §
2700.67.

MATERIAL FACTS

Citation
No. 8705547 states in part:

The Square D breaker box was not labeled to show what circuits they controlled.
This was located in the paint trailer and created [a] shock hazard to employees
in the event of an emergency and [the] circuit[s] could not be identified.

The
material facts are contained in the parties’
stipulations, the attachments to the parties’ briefs
and the additional information the parties supplied the Court. According to the
stipulations, the cited Square D breaker box was located in
an 8 feet wide by 36 feet long by 8 feet high paint trailer at the
plant.[5]
Stip. 4. The breaker box controlled: (1) the overhead
lighting for the main trailer; (2) an electrical power receptacle located below
the breaker box; and (3) the overhead lighting for the paint storage area. Id.
5, Addit’l Stip. 2. The main electrical
disconnect controlling the breaker box was located directly below the box.[6]
Stip. 6. The main electrical disconnect was clearly
labeled in compliance with 30 C.F.R. §56.12018. Id. 7. Exhibit
A, attached to the stipulations, is an “accurate photograph
showing the breaker box and the disconnects as they appeared at the time of the
alleged violation.”
Id. 8. The switch on the left side of the breaker box controlled the
main trailer overhead lighting. Addit’l Stip. 1. The lights were connected to the breaker box by
wiring entering the box toward the left side of the top of the box. Id.).
The switch on the right side of the breaker box controlled the electrical
receptacle and the paint storage room lighting.[7]
Id. 2. The electrical receptacle was connected to the breaker box by
electrical wiring entering the box toward the right side of the bottom of the
box. Id. The paint storage room lighting was connected to the breaker
box by a conduit entering the box toward the right side of the box. Id. 2.
Finally, the parties agreed as to the words that were written on the breaker
box to abate the alleged violation. Id. 3-6.

THE PARTIES’
ARGUMENTS

The
parties maintain that primarily the question before the Court is whether the
Square D breaker box was a “principal power
switch” within the meaning of section 56.12018. Counsel for US
Silica argues for a “plain meaning” interpretation of the phrase “principal power
switch” that excludes the box. Resp.’s Mot. For Sum Dec. 3-12. Counsel for the Secretary argues for a
broader definition that includes the box. Sec’s Op. to
Resp’s Mot. For Sum
Dec. And Cross Mot. For Sum Dec. 2-12. As the
parties are aware, questions regarding the meaning of the phrase “principal power
switch” and whether particular cited equipment comes within the
meaning have repeatedly been brought to the Commission’s judges. While the judges have decided whether certain
equipment is covered by the standard based on the facts of the cases before
them, a definitive meaning of the phrase “principal power
switch” has yet to emerge. See, e.g., Beverly Materials,
LLC, 35 FMSHRC 88, 95-97 (Jan. 2013) (Judge Moran); Cemex
Construction Materials of Florida, LLC, 34 FMSHRC 170, 174 (Jan. 2012)
(Judge Zielinski); Omya Arizona, A Division
of Omya Inc., 33 FMSHRC 2738, 2739-40 (Nov. 2011)
(Judge Miller); Blue Mountain Production Co., 32 FMSHRC 1464, 1473-74
(Oct. 2010) (Judge Miller); Tide Creek Rock, Inc. 19 FMSHRC 390, 399
(March 1996) (Judge Manning); Walker Stone Co., Inc., 12 FMSHRC 256,264
(Feb. 1990) (Judge Fauver); FMC Corp.,
6 FMSHRC 1294, 1299 (May 1984) (Judge Vail) (decided under identically worded
standard, 30 C.F.R. §57.12-18)[8].
This unbroken string of decisions without an agreed upon definition of the
phrase will continue here, because the Court concludes that based on the
stipulations and the information provided, the cited switches can be “readily identified
by location”(30 C.F.R. §56.12018) and therefore come
within the exception to the labeling requirement.

ANALYSIS

As
previously noted, section 56.12018 provides, “Principal power
switches shall be labeled to show which units they control, unless
identification can be made readily by location.” The
citation states, and US Silica agrees, that the subject breaker box was not
labeled to show what the box’s switches controlled. See Resp.’s
Mot. 2 (describing attached Exh.
B). While the parties argue at length about the applicability of the standard
to the breaker box, the Court concludes it need not resolve the arguments
because assuming the box is a “principal power switch,” the box’s switches can be “identified readily
by location” and therefore the box is exempt from the standard’s requirements.

The
breaker box was located in the paint trailer as described in the stipulations. Jnt.
Stip. 4. The box controlled the power supply to only three things: an overhead
light for the trailer, an immediately adjacent electrical power receptacle and
an overhead light for the paint storage area . Stip.
5, Addit’l Stips.
1, 2. It is clear from looking at the photographic
exhibits submitted by the parties that the breaker box was mounted on a board
that was attached to a wall of the trailer. The two switches in the box are
aligned parallel to one another, slightly below the center of the box. Exhs. A,
C, D. Visibly running from the box above the location of the left switch (when
facing the box) is the wiring going to the overhead light for the trailer. Id.;
Addit’l Stps.
1 Visibly running from the box below and slightly to the right of the right switch
is the wiring going to the electrical receptacle that is in turn affixed to the
board a short way below the breaker box. Exhs. A, C, D; Addit’l Stips. 2. Visibly running from
the box to the upper right and above the right switch is a conduit going to the
overhead light for the trailer’s paint storage area. Id.
There is nothing “tricky” about the location of the wiring and the conduit. A person
attempting to turn off the circuits to the lights or the receptacle or both
would need to face the box and the board on which it is mounted. The alignment
of each switch with its corresponding wiring and, in the case of the right
switch, also with its corresponding conduit, would logically signaled to the
most elementary observer, let alone to a knowledgeable miner, that the left
switch controlled the overhead trailer light and the right switch controlled
the receptacle and the paint storage area lighting. Only a blind person might
be confused. The Court therefore finds that identification of the switches “can be made readily
by location” (30 C.F.R. §56.12018) and that the standard
does not apply to the box and the switches.[9]

This is a
simple way to decide the case, but it is all that is necessary, and it is in line
with the fact-based manner in which virtually all cases involving section
56.12018 have been resolved. It also is in accord with the Court’s belief that, tempting as it is to display the Court’s undoubted legal acumen, the Court should decide only issues
that are absolutely necessary to reach a final outcome.

For the
foregoing reasons, US Silica’s motion for summary decision is
GRANTED and the Secretary’s cross motion for summary
decision is DENIED. Citation No. 8705547 IS VACATED.

/s/
David Barbour  

David
Barbour

Administrative
Law Judge

Distribution: (1st
Class U.S. Mail)

Courtney
Przybylski, Esq., U.S. Department of Labor, Office of
the Solicitor, MSHA Backlog, 1999 Broadway, Suite 800, Denver, CO 80202-5708

Margaret
S. Lopez, Esq., Ogletree, Deakins,
Nash, Smoak & Stewart, P.C., 1909 K Street, NW,
Suite 1000, Washington, DC 20006

[1] The standard states:

Principal power switches shall be
labeled to

show
which units they control, unless

identification
can be made readily by location.

30 C.F.R. §
56.12018.

[2] At the plant the
company mines high quality sand that is used in manufacturing glass. The sand
also is used in the production of natural gas through hydraulic fracturing. US Silica, Locations,
http://www.ussilica.com/locations/berkeley-springs-wv (last visited Feb.
24, 2014).

[3] Although the
citation is awkwardly worded, it is clear from the pleadings that the inspector
who cited US Silica used “they” to refer to the box’s two unlabeled circuit
breakers.

[4] E-mail from Courtney
Przybylski, counsel for the Secretary, to Dhruba Mukherjee, law clerk to the Court (Aug. 28, 2013,
3:45 EST) (in official case file).

[5] The parties agreed
that the plant is a “mine” as defined by section 3(h)
of the Mine Act, 30 USC. §
802(h), and that the products of the plant affect commerce. They further
agreed that mine is subject to the Act. Stips. 1, 2.

[6] Although not defined
by the parties, the Court assumes that the main electrical disconnect is, as
its name implies, the electrical device used to connect and disconnect all
electrical circuits in the trailer.

[7] The switches are
best viewed in Exhibits A, B and C.

[8] 30 C.F.R. Part 57
contains mandatory health and safety standards for the nation’s underground metal and
nonmetal mines. 30 C.F.R. 56 contains mandatory health and safety standards for
surface metal and nonmetal mines. 30 C.F.R. §57.12-18
and 30 C.F.R. §56.12-18
were worded the same as current standard 30 C.F.R. § 56.12018. When section 57.12-18 and section
56.12-18 were renumbered in 1985, section 57.12-18 became section 57.12018, and
section 56-12-18 became section 56.12018.

[9] The Court notes that
its approach to resolving the case is similar to that adopted by Commission
Administrative Law Judge August Cetti in Pittsburg
& Midway Coal Co., 14 FMSHRC 346, 351-352 (Feb. 1992). The Pittsburg
& Midway case concerned an alleged violation of 30 C.F.R. 77.904, a
standard requiring that at surface coal mines and surface areas of underground
coal mines, circuit breakers “be
labeled to show which circuits they control, unless identification can be made
readily by location.”
Judge Cetti, based on the factual record before him,
found that the subject circuit “could be readily identified” by looking at the cited
switch and therefore that “no
violation [was] shown by the evidence.”
14 FMSHRC at 352.