M.A.E. West, Incorporated

Plain-English summary

M.A.E. West operated a bituminous coal preparation plant in West Virginia. After a fatal-accident investigation, MSHA issued four electrical-safety citations and two imminent-danger orders involving damaged wiring, lockout practices, and circuit breakers. Judge George A. Koutras approved the parties' settlements and affirmed the citations and orders, with agreed amendments and modifications. The judge reduced the negligence finding for Citation No. 2909487 and approved total civil penalties of $7,690.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.502, § 77.516, and § 77.404(c)
• Outcome: The settlements were approved, all contested citations and orders were affirmed as modified, and $7,690 in penalties was ordered.
• Key point: Settlement approval can resolve contested electrical-safety citations and imminent-danger orders when the agreed modifications are accepted as reasonable and in the public interest.

Full text (FMSHRC public release)

CCASE:
M.A.E. WEST V. SOL (MSHA)
DDATE:
19880627
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

M.A.E. WEST, INCORPORATED, CONTEST PROCEEDINGS
CONTESTANT
v. Docket No. WEVA 87-234-R
Citation No. 2909484; 5/14/87
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Docket No. WEVA 87-235-R
ADMINISTRATION (MSHA), Citation No. 2909485; 5/14/87
RESPONDENT
Docket No. WEVA 87-236-R
Citation No. 2909486; 5/14/87

                                          Docket No. WEVA 87-237-R
                                          Citation No. 2909487; 5/14/87

                                          Docket No. WEVA 87-238-R
                                          Order No. 2909488; 5/14/87

                                          Docket No. WEVA 87-239-R
                                          Citation No. 2909489; 5/14/87

                                          MAE West Preparation Plant
                                          Mine ID 46Ä03755

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 88-92
PETITIONER A.C. No. 46-03755-03534
v.
M.A.E. West Preparation Plant
M.A.E. WEST, INCORPORATED,
RESPONDENT

                              DECISIONS

Appearances: Mark M. Neil, Esq., Rist, Neil & Associates, and William D.
Stover, Esq., M.A.E. Services, Inc., Beckley, West Virginia,
for the Contestant/Respondent;
Jack E. Strausman, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Respondent/Petitioner.

Before: Judge Koutras

                     Statement of the Proceedings

 These consolidated proceedings concern six Notices of

Contests filed by M.A.E. West Incorporated pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 815(d), challenging the validity of four section 104(a)
citations, with special "significant and substantial" (S & S)
findings, and two section 107(a) imminent danger orders issued at
M.A.E. West's Preparation Plant on May 14, 1987. The citations
and orders were issued after the conclusion of a fatal accident

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investigation conducted by MSHA (Exhibit GÄ27). A hearing was
conducted in Beckley, West Virginia, during May 24Ä25, 1988, and
the parties appeared and participated fully therein.

         Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub.L.

95Ä164, 30 U.S.C. 801 et seq.

 2. Commission Rules, 29 C.F.R.   2700.1 et seq.

                             Issues

 The issues presented in these proceedings are as follows:

      1. Whether or not the conditions and practices cited in
      the imminent danger orders constituted an imminent
      danger within the meaning of section 107(a) of the Act.

      2. Whether or not the conditions or practices described
      in the citations issued pursuant to section 104(a) of
      the Act constituted violations of the cited mandatory
      safety standards, and if so, whether or not these
      violations were significant and substantial.

      3. The appropriate civil penalty assessments that
      should be assessed against M.A.E. West for the
      violations in question, taking into account the civil
      penalty assessment criteria found in section 110(i) of
      the Act.

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Stipulations

    The parties stipulated to the following (Exhibit ALJÄ1; Tr.

5Ä6):

         1. MAE West, Inc. is a West Virginia Corporation
         located at 41 Eagles Road, Beckley, West Virginia
         25801.

         2. MAE West, Inc. operates a bituminous coal
         preparation plant at Uneeda in Boone County, West
         Virginia.

         3. The federal mine identification number for the MAE
         West Prep. Plant is 46Ä03755.

         4. MAE West, Inc., and the operation of the MAE West
         Prep. Plant, are subject to the jurisdiction of the
         Mine Safety and Health Act of 1977, as amended, 30
         U.S.C.   801 et seq.

         5. The Administrative Law Judge has jurisdiction over
         this proceeding.

         6. The inspector who issued the subject 104(a)
         citations (numbers 2909484, 2909485, 2909487, and
         2909489) and the subject 107(a) imminent danger orders
         (numbers 2909486 and 2909488) was a duly authorized
         representative of the Secretary of Labor.

         7. The subject 104(a) citations (numbers 2909484,
         2909485, 2909487 and 2909489) and the subject 107(a)
         imminent danger orders (numbers 2909486 and 2909488)
         were properly served upon the operator in accordance
         with sections 104(a) and 107(a) of the Act.

         8. Copies of the subject citations and orders, and the
         subsequent modifications or terminations issued, are
         authentic and may be admitted into evidence for the
         purpose of establishing their issuance and not for the
         truthfulness of any statement therein.

         9. A copy of Form RÄ17, the Assessed Violation History
         Report for the MAE West, Inc. Prep. Plant accurately
         sets forth the number and types of violations assessed
         for said plant

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during the period from May 12, 1985 to May 11, 1987 and may be
admitted into evidence.

      10. For purposes of section 110(i) of the Act, MAE
      West, Inc. is a moderate-sized company.

      11. The imposition of the proposed civil penalties will
      not affect the operator's ability to continue in
      business.

      12. For purposes of section 110(i) of the Act, the
      operator demonstrated good faith in achieving
      compliance with the Act after being notified of the
      subject 104(a) violations (numbers 2909484, 2909485,
      2909487, 2909489).

Bench Ruling

 During opening statements at the hearing, MSHA's counsel

moved for leave to amend and modify section 107(a) Order No.
2909486 to cite a violation of 30 C.F.R. 77.404(c) rather than
30 C.F.R. 77.516 (Exhibit GÄ3Äa). Counsel also moved to amend
and modify section 104(a) Citation No. 2909487 to cite a
violation of section 77.404(c), rather than section 77.516, and
to delete the sentence which originally appeared in item #8,
"condition or practice" on the face of the original citation
form, which read "The practice is contrary to the National
Electrical Code section 430Ä86" (Exhibit GÄ4Äa).

 M.A.E. West's counsel filed a previously prepared written

objection to the proposed modifications and amendments, and after
further arguments on the record, MSHA's request was granted, and
the objection was rejected (Tr. 8).

                           Discussion

 The contested citations and orders, as modified and amended,

are as follows:

 Section 104(a) "S & S" Citation No. 2909484, 30 C.F.R.

77.502 (Exhibit GÄ1):

      The conduit provided for the 480 volt a.c. three phase
      circuit for the drive motor of the raw coal bypass
      belt, also called the breaker reject belt, included a
      junction box that was damaged to the extent that muck
      and water were allowed to accumulate in it. This
      resulted in

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a power lead shorting to ground, and it shorted out the
start-stop controls of the Koppers rotary breaker.

 Section 104(a) "S & S" Citation No. 2909485, 30 C.F.R.

75.516 (Exhibit GÄ2):

      The No. 14 AWG control leads for the JDG switch of the
      Koppers rotary breaker were spliced 12 feet inby the
      large splice box located on the underside of the 2nd
      floor of the breaker building. The splice shorted to
      the conduit and shorted the start-stop switches for the
      Koppers rotary breaker. The splice was located inside a
      run of conduit tubing, not acceptable in the National
      Electrical Code, section 346Ä14 for rigid metal
      conduit, and section 345Ä14 for intermediate metal
      conduit.

 Section 107(a) Imminent Danger Order No. 2909486, 30 C.F.R.

77.404(c), (Exhibits GÄ3 and GÄ3Äa)

      During the investigation of a fatal accident, it was
      revealed that a practice of working on and inside the
      Koppers rotary breaker without locking out the circuit
      breaker which was the disconnecting device, existed.

 Section 104(a) "S & S" Citation No. 2909487, 30 C.F.R.

77.404(c) (Exhibits GÄ4 and GÄ4Äa):

      The investigation of a fatal accident revealed that a
      practice of not turning power off and locking out the
      circuit breaker for the Koppers rotary breaker existed
      when work was being performed on the machine. The
      circuit breaker was the power disconnecting device.

 Section 107(a) Imminent Danger Order No. 2909488, 30 C.F.R.

77.516, (Exhibits GÄ5)

      During the investigation of a fatal accident it was
      found that some circuit breakers in the circuit breaker
      room of the breaker building which were the power
      disconnecting devices for the motor circuits were not
      provided with a means to be locked out when work was
      being performed.

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Section 104(a) "S & S" Citation No. 2909489, 30 C.F.R. 77.516,
(Exhibit GÄ6):

      Some circuit breakers used as the power disconnecting
      devices for motor circuits in the breaker building were
      not provided with a means to be locked out when work
      was being performed on the machines. This is contrary
      to the National Electrical Code section 430Ä86. These
      circuit breakers included the rock bin undercut gate,
      the 2Ä48 inch slope conveyor, and the main.

MSHA's Testimony and Evidence

 In support of its position in these proceedings, MSHA

presented the testimony of Federal Mine Inspectors James E. Davis
and Roy W. Milam. Inspector Davis prepared the official report of
investigation concerning the accident in question, and he
testified as to his findings which were included in the report,
as well as to certain information developed during interviews
with certain witnesses in the course of the investigation
(Exhibits GÄ27 and GÄ30). Inspector Milam, the individual who
issued the contested citations, testified as to the facts and
circumstances concerning his electrical inspections, and the
reasons for the issuance of the citations in question.

 During the second day of the hearing, and during a break in

the cross-examination of Inspector Milam, the parties advised me
that they had reached a proposed settlement in all of these
matters, and MSHA's counsel requested some additional time to
contact his office for the purpose of discussing and clearing the
proposed settlement with his supervisor. Counsel's request was
granted, and the hearing was recessed to accommodate the parties
in their further settlement negotiations. The hearing was
subsequently reconvened, and the parties advised me that they had
reached an agreement and proposed settlement of all of the cases,
and they were afforded time to present their settlement motions,
including supporting arguments on the record. MSHA's counsel
confirmed that Inspectors Davis and Milam agreed with the terms
of the settlement, which are as follows (Tr. 55Ä60):

      1. Docket Nos. WEVA 87Ä234ÄR, WEVA 87Ä235ÄR, and WEVA
      87Ä239ÄR. With regard to section 104(a) "S & S"
      Citation Nos. 2909484, 2909485, and 2909489, the
      parties are in agreement that the citations may be
      affirmed as issued and modified by the inspector.
      M.A.E.

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West agreed to pay the full amount of the proposed civil penalty
assessments for the violations in question, and agreed to
withdraw its contests in this regard.

   2. Docket No. WEVA 87Ä238ÄR. The parties agreed that
   the contested section 107(a) Imminent Danger Order No.
   2909488, may be affirmed as issued and modified by the
   inspector, and M.A.E. West agreed to withdraw its
   contest in this regard.

   3. Docket Nos. WEVA 87Ä236ÄR and WEVA 87Ä237ÄR. With
   the concurrence of Inspector Milam, the parties agreed
   to amend and modify section 107(a) Imminent Danger
   Order No. 2909486 and section 104(a) "S & S" Citation
   No. 2909487, so that the "condition or practice"
   described by the inspector will read as follows:

        During the investigation of a fatal accident it
        was concluded that Chester Asbury entered the
        Koppers Rotary Breaker for the purpose of repairs
        and maintenance without the power being off in
        violation of 30 C.F.R.   77.404(c).

   The inspector's "high" negligence finding with respect
   to Citation No. 2909487 is reduced to "moderate,"
   thereby justifying a reduction of the original civil
   penalty assessment.

   The parties agreed that the contested order and
   citation, as amended and modified above, may be
   affirmed as issued, and subsequently amended and
   modified. M.A.E. West agreed to withdraw its contests
   in this regard.

   With respect to MSHA's proposed civil penalty
   assessment of $8,000, for the Citation No. 2909487,
   MSHA agreed to reduce its proposed penalty assessment
   for this violation to $7,000, and M.A.E. West agreed to
   pay that amount in satisfaction of the violation.

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Conclusion

 After careful review and consideration of the pleadings, and

the arguments presented by the parties in support of the proposed
settlement disposition agreed to by the parties in these
proceedings, the proposed settlements were accepted and approved
from the bench. Further, pursuant to the requirements of
Commission Rule 30, 29 C.F.R. 2700.30, I conclude and find that
the settlement agreements are reasonable and in the public
interest, and my bench decisions in this regard ARE REAFFIRMED.

                               ORDER

 All of the citations, orders, and violations in issue in

these proceedings ARE AFFIRMED. M.A.E. West IS ORDERED to pay the
following civil penalty assessments for the violations in
question, within thirty (30) days of the date of these decisions
and order:

   Citation/              30 C.F.R.
   Order No.     Date     Section      Assessment

   2909484     05/14/87   77.502          $ 255
   2909485     05/14/87   77.516          $ 255
   2909487     05/14/87   77.404(c)       $7,000
   2909489     05/14/87   77.516          $ 180

 IT IS FURTHER ORDERED that the Notices of Contests filed by

M.A.E. West in connection with the contested violations in issue
in these proceedings ARE DISMISSED. Upon receipt of payment of
the aforesaid civil penalty assessments by the petitioner, the
civil penalty proceeding is likewise dismissed.

                          George A. Koutras
                          Administrative Law Judge