U.S. Steel Mining Company, Inc.

Plain-English summary

U.S. Steel Mining was cited after a shuttle-car operator taped a nick in a deenergized and locked-out trailing cable without a qualified electrician present. Judge George A. Koutras found that the taping was mechanical work, not electrical work requiring a qualified person under the cited standards. The citation was vacated, and the proposed $157 civil penalty was denied and dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.511 and 75.153
• Outcome: Citation No. 3237405 was vacated, and the proposed $157 penalty was denied and dismissed.
• Key point: Work on a deenergized, locked-out trailing cable was not automatically electrical work requiring a qualified person when it consisted of taping a nick rather than making or repairing a splice.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. U.S. STEEL MINING
DDATE:
19910916
TTEXT:

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           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judges
                         2 Skyline, 10th Floor
                          5203 Leesburg Pike
                     Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 90-225
PETITIONER A.C. No. 46-01816-03745
v.
Gary No. 50 Mine
U.S. STEEL MINING COMPANY,
INC.,
RESPONDENT
AND

UNITED MINE WORKERS OF
AMERICA (UMWA),
INTERVENOR

                                  DECISION

Appearances: Javier I. Romanach, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Billy M. Tennant, Esq., U.S. Steel Mining Company,
Inc., Pittsburgh, Pennsylvania, for the
Respondent.

Before: Judge Koutras

                            Statement of the Case

 This proceeding concerns a proposal for assessment of civil

penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking a civil penalty assessment of
$157 for an alleged violation of mandatory safety standard 30
C.F.R. 75.511. The respondent filed an answer contesting the
alleged violation and a hearing was held in Beckley, West
Virginia. The UMWA failed to appear. The parties filed
posthearing briefs, and I have considered their arguments in the
course of my adjudication of this matter.

                                   Issues

 The issues presented in this proceeding are (1) whether the

respondent has violated the cited standard as alleged in the
proposal for assessment of civil penalty, (2) whether the
violation was "significant and substantial," and (3) the

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appropriate civil penalty that should be assessed based on the
criteria found in section 110(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.

             Applicable Statutory and Regulatory Provisions

  1.     The Federal Mine Safety and Health Act of 1977, Pub.
         L. 95-164, 30 U.S.C.   801 et seq.

  2.     Section 110(i) of the 1977 Act, 30 U.S.C.      820(i).

  3.     30 C.F.R.   75.511 and   75.153.

  4.     Commission Rules, 20 C.F.R.   2700.1 et seq.

                              Stipulations

 The parties stipulated in relevant part as follows (Exhibit

ALJ-1):
1. The presiding judge has jurisdiction to hear and
decide this matter.

  2.     The inspector who issued the contested citation was
         acting in his official capacity as a Federal coal mine
         inspector.

  3.     The citation was properly issued to the respondent's
         agents.

  4.     The cited conditions were timely abated.

  5.     Payment of the proposed civil penalty assessment of
         $157 will not adversely affect the respondent's ability
         to continue in business.

                               Discussion

 The contested section 104(a) "S&S" Citation No. 3237405,

issued by MSHA Inspector Gerald L. Smith on May 9, 1990, cites an
alleged violation of mandatory safety standard 30 C.F.R. 75.511,
and the cited condition or practice is described as follows:

       It was revealed during a 103(g)(1), Step 3 grievance
       held on 5-9-90 that electrical work was being performed
       on 5-2-90 in the Sulfer Branch section when repair was
       made on a damaged permanent type splice in a 300 U.D.C.

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trailing cable by a nonqualified person or under the
supervision of a qualified person.

Petitioner's Testimony and Evidence

 Edward Ray Lewis, a shuttle car operator, testified that on

May 2, 1990, he found "a split in the boot on the shuttle car
cable," and reported it to his section foreman Harry Brooks. Mr.
Brooks instructed him to "lock it out and get some tape and tape
it." Mr. Lewis confirmed that he locked out the machine, obtained
some black electrical tape "and wrapped it three or four coats
and covered the split real good as best I could on the cable and
boot." Mr. Lewis confirmed that he is not a certified
electrician, that Mr. Brooks is not a certified electrician, and
that there was no certified electrician on the section at the
time in question. Mr. Lewis stated that he was not qualified to
know whether the cable was repaired properly (Tr. 62-64).

 On cross-examination, Mr. Lewis stated that he has worked as

a shuttle car operator for approximately 5 1/2 years. He
confirmed that during this period of time he has found "nicks" on
shuttle car cables, and that he always reported it to his foreman
or directly to the mechanic. Mr. Lewis denied that he had ever
taped such cable nicks in the past, or that any other foreman had
ever asked him to do so. He admitted that he has helped a
mechanic tape such a cable "plenty of times," and that he did the
actual taping in the presence of the mechanic or a certified
person (Tr. 64-65).

 Mr. Lewis stated that on the day in question, he saw no

exposed cable wires and that the "split in the boot" was
approximately 2 1/2 inches deep and long, and 1/2 inch wide. He
explained that the "split" was in the boot of the permanent cable
splice. He confirmed that the condition was "just a nick in the
outer boot", and that he taped it as instructed by Mr. Brooks
(Tr. 66).

 Mr. Lewis further explained his prior taping of cables and

he indicated that he has helped a mechanic tape a splice after
the mechanic or certified electrician made the splice. He
confirmed that he has also taped cables in the past with a
mechanic either helping him or watching him, and he stated
further as follows at (Tr. 69):

Q.    When we are just taping a nick, not making a splice,
      just taping a nick, what part does the mechanic play in
      that? What does he do while you are taping the nick in
      the cable?
A.    He usually does -- he's standing there.

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Q. Just standing there. He does not really have to do anything;
he is just there.
A. Yes, sir.

 Mr. Lewis stated that he did not object to the taping

assignment by Mr. Brooks and he did not tell Mr. Brooks that he
was not qualified to do the work. Mr. Lewis stated that it took
him approximately 5 minutes to lock out the machine, obtain the
tape, and tape the cable. He confirmed that he informed a safety
committee member about the matter. Mr. Lewis did not believe that
it was unsafe to do the work, and he did not believe that he was
placing himself at risk because the power was off the machine. He
also believed that it would have been unsafe to leave the cable
nick "like that" (Tr. 72).

 MSHA Electrical Inspector Gerald L. Smith confirmed that he

issued the contested citation on May 9, 1990, and that he did so
on the basis of information which he received in the course of a
section 103(g)(1) Step 3 grievance proceeding at the mine. Based
on the evidence from individuals involved in the grievance, a
determination was made that electrical work had been performed by
a person who was not a certified or qualified electrician or
under the direct supervision of a certified or qualified person
(Tr. 76-79).

 Mr. Smith stated that Mr. Lewis testified at the grievance

proceeding that he observed a damaged place in a permanent splice
on the cable of the shuttle car which he had operated and that
Mr. Brooks gave him a lock and told him to repair the damaged
place in the splice by taping it. As a result of this
information, Mr. Smith issued the citation and he did so because
he believed the work performed by Mr. Lewis was electrical work
and Mr. Lewis was not a certified electrician and did not perform
the work under the direct supervision of a certified person (Tr.
79).

 Mr. Smith stated that he considered the taping of the cable

by Mr. Lewis to be electrical work and repair to the cable, even
though the cable was not energized. Mr. Smith considered the
citation to be significant and substantial because Mr. Lewis was
not a qualified electrician and he could not determine whether he
repaired the cable properly so that it would not fail or cause
problems in the future. The insulated conductors inside the cable
would need to be checked to determine whether there was any
damage caused by the nick, and if the repairs are not properly
made future dampness could cause an arc inside the cable and
result in a blown cable. Although Mr. Lewis was not
MSHA-certified, Mr. Smith had no knowledge of his qualifications
to repair the cable, and Mr. Lewis stated that he had no previous
training (Tr. 81).

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Mr. Smith stated that it was reasonably likely that "something
could occur if the splice hadn't been properly repaired." He also
stated that "taping the splice is not acceptable anyway" (Tr.
82). Mr. Smith did not believe that the splice was properly
repaired because permanent splicing is covered by section 75.604.
However, Mr. Smith confirmed that Mr. Lewis was not making a
splice and that "all he did was just tape over top of a splice,
which we don't accept anyway" (Tr. 83).

 Mr. Smith believed that shock injuries could occur if

someone were to handle a cable under wet conditions at the point
where it is damaged. Mr. Smith did not know how many people were
in the area on May 2, 1990, when Mr. Lewis repaired the cable,
and he had no knowledge of the actual condition of the cable. Mr.
Smith also did not know whether or not the mine safety committee
pursued the issue of the condition of the cable, and he believed
that the committee was only concerned about whether or not Mr.
Lewis was a qualified person to do the work in question (Tr.
84-85).

 On cross-examination, Mr. Smith confirmed that he never saw

the cable and did not inspect it. He stated that the citation was
issued a week after Mr. Lewis performed the work on May 2, and
that he did not issue a citation for a violation of section
75.604, because the complaint concerned electrical work being
performed by a noncertified person and not the type or quality of
the work being performed. He believed that the taping of the
cable would have been a violation of section 75.604 (Tr. 87).

 Mr. Smith stated that a nick in the cable may be taped, but

if the splice is nicked it may not be taped and a new splice must
be made (Tr. 89). He further indicated that if there were a nick
in the outer insulation of the cable, the fact that Mr. Lewis
taped it would not be a violation of section 75.604. Mr. Smith
explained the requirements of sections 75.517 and 75.604 (Tr.
90-94).

 Mr. Smith stated that he would consider the taping of a nick

on any portion of the cable to be electrical work, and that
MSHA's policy prohibits an unqualified person from applying tape
to a cable or to a splice. He believed that an unqualified person
may not apply tape anywhere along the length of a trailing cable
(Tr. 95). He considered this to be "electrical work" for the
following reason (Tr. 95):

    Q.   Why do you consider that electrical work?

    A.   Because it's an electrical component of that piece
         of equipment, and it's the portion of that equipment
         that furnishes power to

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operate that equipment. If you use
electrical tape and take the regular steps
pertaining to 511 which says that it should
be locked and tagged out, if you do all that,
so you must consider it electrical work or
why would you lock and tag it out if it's not
electrical work.

 Mr. Smith explained the reasons for locking out the

equipment, and he described the cable and cable splice in
question (Tr. 96-98). He stated that if he were repairing a cable
splice he would visually examine the inner conductors to be
certain that they were not split or would allow moisture to get
in. He confirmed that the cable is protected, and if it blows,
the system will deenergize (Tr. 99-100).

 Referring to MSHA's policy guidelines with respect to the

application of section 75.511 (Exhibit P-5), Mr. Smith stated
that the work performed by Mr. Lewis would "maybe" fall under
Example No. 5 at page 59, "repair of electrical components of
electrically-powered portable, mobile or stationary equipment" or
Example No. 7, "electrical maintenance of permissible equipment"
(Tr. 102). He agreed that the policy examples concerning what is
considered to be "electrical work" and what is not are not clear
cut, and he stated "I don't agree with a lot of them" (Tr. 104).

 In response to further questions, Mr. Smith stated that the

citation was issued after he participated in the contractual
union-management grievance concerning the union's complaint that
an unqualified person (Lewis) was required to do electrical work.
Mr. Smith further stated that he made the determination that
electrical work was performed and that a violation existed, and
that the determination was in the form of the citation which he
issued (Tr. 106-108). He confirmed that his "determination"
consisted of the citation and abatement, and although notes were
taken during the grievance, the information supplied by witnesses
was not tape-recorded and no transcript of the grievance was made
(Tr. 113). Mr. Smith stated that his determination that Mr. Lewis
was not "qualified" was based on Mr. Lewis' statement to that
effect which he made the day following the grievance (Tr. 114).

 Respondent's Safety Manager Chris Presley confirmed that

state mine inspectors were also called to hear the grievance and
they too issued a citation after concluding that the work
performed by Mr. Lewis was "electrical work." Respondent's
counsel stated that the respondent contested that state finding,
which was in the form of a citation, and that a hearing has been
held, but no decision has been rendered (Tr. 108-111).

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Respondent's Testimony and Evidence

 Jeffrey Music, mine maintenance manager, testified as to his

duties as a maintenance foreman for 12 years, and he confirmed
that he has been a West Virginia certified electrician for 12
years. He confirmed that he is an MSHA "qualified person"
pursuant to section 75.153 (Tr. 114-116).

 Mr. Music was of the opinion that once a cable splice is

made permanent, it becomes an integral part of the cable because
it is permanent and nothing further is required to be done. If
the splice is damaged, it is treated no different than other part
of the cable. If the damage is great, the splice is remade. If
the damage is superficial, such as the outer jacket, it is simply
taped and sealed in the same manner as a regular piece of cable
(Tr. 117).

 Mr. Music stated that a nick in an unspliced portion of a

trailing cable, where there are no exposed wires, is simply
repaired by applying tape to the jacket. Similar damage to a
permanent splice is repaired in the same manner. Splice kits are
not used unless a permanent splice is being made. Cable nicks,
where no conductors are exposed, are taped in order to keep the
condition from becoming worse, to keep water out, and to prevent
"nuisance tripping" of the breakers (Tr. 118).

 Referring to the West Virginia State Administrative Mining

Regulations (Exhibit R-2), itemizing examples of what is
considered to be electrical work, and what is not, Mr. Music
stated that this information is used as part of the mine
training. He confirmed that as a qualified electrician, he is
obligated to follow these quidelines. He pointed out that item
No. 13, at page 2, states that a noncertified electrician may
perform work taping or reinsulating cables if no conductors or
bare wires are showing. In his opinion, Mr. Lewis was not asked
to perform electrical work because he was not making a splice,
and there were no exposed conductors or leaks (Tr. 119-120).

 On cross-examination, Mr. Music stated that he was not at

the Mine on May 2, 1990, and he agreed that all electrical work
should be performed by a qualified person or under the direct
supervision of a qualified person. In his opinion, a nick in a
cable splice may be taped by a certified or noncertified person
(Tr. 121). He believed that an outer cable jacket provides
mechanical protection for the conductors inside the cable, and
"in one sense of the word it would be a type of mechanical work"
(Tr. 122).

                       Arguments by the Parties

 During oral arguments in the course of the hearing,

petitioner's counsel asserted that pursuant to MSHA's policy, the
work performed by Mr. Lewis when he locked out the equipment and

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taped the nick in the shuttle car trailing cable, was electrical
work within the meaning of section 75.511. Counsel stated that
the taping of the cable by Mr. Lewis constituted a "repair," and
that the locking out of any electrical equipment is required to
be done by a qualified person or under the supervision of a
qualified person. Counsel confirmed that the terms "qualified"
and "certified" are used interchangeably. He took the position
that Mr. Lewis and Mr. Brooks should have waited for an
electrician to check out and repair the cable, and that simply
because the cable was taped did not render it safe. Counsel
concluded that due to the hazards presented by an unqualified
persons repairing a trailing cable, the violation was significant
and substantial (Tr. 52-54; 73-74). Counsel took the position
that the intent of the cited standard is to insure that all
electrical work is done by a qualified person, or under the
supervision of a qualified person, so as to preclude any future
problems. He concluded that on the facts of this case, Mr. Lewis
was not only not qualified to do the work in question, but he was
also not qualified to determine whether the cable was repaired
properly.

 In its posthearing brief, the petitioner asserts that the

respondent may not rely on the less stringent state standard that
allows a non-qualified person to tape cables where there are no
visible conductors or bare wires, and that MSHA's mandatory
standard is controlling. Petitioner also reiterates its argument
that an unqualified person would not be able to properly repair a
cable or to properly inspect it to ascertain the extent of any
damage to the insulated conductors.

 Petitioner concludes that the hazards involved in having

unqualified persons working on or repairing trailing cables is
well-documented, citing Karst Robins Coal Company, Inc., 10
FMSHRC 1708 (December 1988), where an unqualified miner was
shocked and burned while working on a 480 volt trailing cable.
However, I take note of the fact that in Karst Robins even though
the miner's supervisor who assigned him the electrical repair
work was the chief electrical supervisor and maintenance foreman,
the roof bolter cable which caused the injury had not been
deenergized and locked out or tagged at the power center. In the
instant case, the trailing cable which was taped by Mr. Lewis was
locked out and the shuttle car was deenergized.

 Citing U.S. Steel Mining Company, Inc., 5 FMSHRC 1752

(October 1983), where Judge Broderick affirmed a violation of
section 75.511, after concluding that an unqualified shuttle car
operator who changed a light bulb in a shuttle car performed
electrical work, the petitioner concludes that even though
putting a piece of tape on a nick in a permanent splice in a
trailing cable seems rather elementary so that no certification
is required, it is still electrical work which only certified
persons should perform. However, I also take note that in the

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case cited, the unqualified miner failed to lock out and tag the
disconnecting device when he did the work, and that the changing
of the light bulb required the removal of the lens and the
insertion of the bulb having two prongs into a socket having two
holes.

 Respondent's counsel asserted that at no time prior to the

hearing was he informed that the locking out of the equipment by
Mr. Lewis was considered a violation, and he pointed out that the
citation makes no reference to any "locking out" (Tr. 54-56).
With regard to the alleged "electrical work" performed by Mr.
Lewis, counsel asserted that there were no exposed wires or
conductors in the cable, and that "all Mr. Lewis did that day was
tape a cut in the outer insulation of a splice in a trailing
cable of a shuttle car," and that he was "simply dealing with a
nick in the neighborhood of 1 1/2 by 3 inches cut in the outer
surface of the cable" (Tr. 56). Counsel concluded that this was
not electrical work within the meaning of section 75.511.

 Respondent's counsel further pointed out that the term

"electrical work" is not defined in MSHA's Safety Regulations,
but that it is addressed in MSHA's Program Policy Manual (Exhibit
P-5). Counsel asserted that Mr. Lewis was not making a cable
splice, which is one of the policy examples cited as "electrical
work". Referring to the policy examples of work which is not
required to be performed by a qualified person, counsel argued
that "if handling an energized trailing cable is not electrical
work, then merely applying tape to a de-energized trailing cable
can hardly be considered to be electrical work" (Tr. 57). Counsel
cited Example No. 10 -"mechanical repairs on electrically powered
equipment, provided no energized parts or conductors are
exposed"- as work similar to what Mr. Lewis was doing. Counsel
argued that Mr. Lewis "was not doing anything electrical. He was
simply physically applying tape to a cut in an outer insulation"
(Tr. 58).

 Respondent's counsel produced a copy of the rules and

regulations of the State of West Virginia with respect to the
certification of mine electricians, and he pointed out that many
of the examples as to the type of work which does and does not
qualify as "electrical work" are similar or identical to MSHA's
policy guidelines. We also pointed out that the state qualifies
the respondent's mine electricians and that they are duly
recognized as such by MSHA. One of the examples of nonelectrical
work which does not require a qualified person to perform states
"Reinsulate or tape cables when there are no conductors or bare
wires showing" (Exhibit R-2, No. (13), pg. 2; Tr. 58). Counsel
took the position that the work performed by Mr. Lewis "is simply
not electrical work under the State of West Virginia. Anybody can
do it" (Tr. 127).

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In its posthearing brief, the respondent asserts that in
view of the requirements of sections 75.514 and 75.604, a
permanent splice provides at least the same degree of protection
to the electrical conductors within the cable as does the outer
insulation along the remainder of the cable. Respondent concedes
that if conductors or bare wires are exposed, a permanent splice
must be made by a qualiied peson to complete the electrical
repair. However, the respondent maintains that where cable damage
consists of a nick that does not expose conductors or bare wires,
the application of tape by a competent person is an adequate
mechanical repair because no electrical components of the cable
are damaged, and there is no basis for concluding that damage to
a cable permanent splice must be repaired any differently than
the same degree of damage to the remainder of the cable.

                       Findings and Conclusions

 The respondent is charged with an alleged violation of

mandatory safety standard 30 C.F.R. 75.511, which provides as
follows:

      No electrical work shall be performed on low-, mediumor
      high-voltage 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.
      Disconnecting devices shall be locked out and suitably
      tagged by the persons who perform such work, except
      that in cases where locking is not possible, such
      devices shall be opened and suitably tagged by such
      persons. Locks or tags shall be removed only by the
      persons who installed them or, if such persons are
      unavailable, by persons authorized by the operator or
      his agent. (emphasis added)

 An individual is deemed to be a "qualified person" to

perform electrical work within the meaning of section 75.511, if
he or she meets the requirements stated in 30 C.F.R. 75.153.
The petitioner's counsel confirmed that the terms "certified" and
"qualified" are used interchangeably.

 The respondent was cited for a violation of section 75.511

after the inspector received information that shuttle car
operator Edward Lewis had locked out the machine and taped over a
split or "nick" which he found on the boot of a permanent splice
in the shuttle car cable. Mr. Lewis had reported the cable
condition to his section foreman Harry Brooks, and Mr. Brooks
instructed him to lock out the machine and tape the nick in the
cable. Mr. Lewis did so, and the job took approximately 5
minutes.

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The parties agreed that Mr. Lewis and Mr. Brooks were not
"qualified persons" pursuant to section 75.153 (Tr. 58-59). When
the UMWA Union learned that Mr. Brooks had instructed Mr. Lewis
to perform a job task which it believed constituted electrical
work, it filed a safety grievance pursuant to section 103(g) of
the Act. Based on the information received in the course of that
grievance, the inspector concluded that the work performed by Mr.
Lewis (locking out the machine and taping the nick in the cable)
was electrical work, and since Mr. Lewis was not qualified to do
the work pursuant to section 75.153, and since Mr. Brooks was not
qualified to supervise the work, the inspector issued the
citation.

 The parties agreed that there were no exposed wires or

conductors in the cable at the time Mr. Lewis taped over the nick
in the splice boot, and there is no evidence concerning the
overall condition of the cable, or the quality of the taping job
performed by Mr. Lewis other than his statement that he "wrapped
it real good." The inspector believed, but was not sure, that the
splice was subsequently removed from the cable during the same
shift. Respondent's Safety Manager Presley indicated that the
splice was removed so that mine management could use it at any
hearing, but that it was later disposed of (Tr. 127-128).

 The term "electrical work" is not defined in MSHA's

regulations or in its most recently published July 1, 1988,
Program Policy Manual (Exhibit P-5). However, the West Virginia
State Mining Regulations establishing standards for certification
of persons performing electrical work in coal mines contain the
following definition (Exhibit R-2):

      Section 48-7-2. Definitions.
      2.1 Electrical work - The term "electrical work" shall
      mean work consisting primarily of electrical
      construction, installation, testing, inspection,
      maintenance and repair tasks on electrical coal mining
      equipment, apparatus, circuits, and/or distribution
      circuits used in or around a coal mine.

 MSHA's Program Policy Manual states that for the purpose of

section 75.511, "electrical work is considered to be the work
required to install or maintain electric equipment or conductors"
(Exhibit P-5, pg. 58). Included among the examples of work
required to be performed by a qualified person are "3. Making
splices, connections and terminations in electric conductors and
cables," and "7. Electrical maintenance of permissible
equipment." Included among the examples of work that is not
required to be performed by a qualified person is "10. mechanical
repairs on electrically-powered equipment, provided no energized
parts or conductors are exposed."

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The state regulations also contain examples of what is, and
what is not, considered to be work required to be performed by a
certified electrician. Included among the examples of work that
is not required to be performed by a certified electrician is the
identical provision found in MSHA's policy manual (Item #10
quoted above), and the following: "(13) Reinsulate or tape cables
when there are no conductors or bare wires showing".

 The violation notice issued by Inspector Smith describes the

"electrical work" in question as a "repair made on a permanent
type splice" in the trailing cable. However, the evidence
reflects that Mr. Lewis did not make or repair a splice. He
simply taped over a nick or split in the boot of the permanent
splice, and other than a roll of electrical tape, he used no
tools or other equipment. There were no exposed wires or
conductors, and Mr. Lewis covered the nick with three or four
wraps of tape, and it took him 5 minutes to lock out the machine,
obtain the tape, and tape the cable. MSHA's policy does not
prohibit the taping of a cable by a non-certified person when
there are no conductors or bare wires showing.

 Although it is true that Mr. Lewis was not a qualified

person for purposes of electrical work, he admitted that he had
often either taped cables in the presence of a mechanic or a
certified person or assisted a mechanic in the taping of cables.
He also admitted to the taping of cable splices after they were
made by a mechanic or certified electrician. In the instant case,
Mr. Lewis did not advise Foreman Brooks that he was not a
qualified person, nor did he object to doing the work. Further,
Mr. Lewis did not believe that he was at risk by doing the job,
particularly since the machine was deenergized and locked out.
Indeed, Mr. Lewis believed that it would have been unsafe to
leave the cable nick in the condition which he found it.

 The inspector stated that taping over a splice is not

acceptable, and he was concerned that a nonqualified person such
as Mr. Lewis was not competent to determine whether or not a
cable splice was properly repaired to preclude future failure or
other problems. The inspector stated that the taping of a splice
is unacceptable and he believed that the splice was not properly
repaired by Mr. Lewis as required by Section 75.604, and that the
taping was a violation of that section. However, the inspector
admitted that Mr. Lewis was not making a splice, and there is no
evidence to indicate that simply taping a nick in a cable
constitutes the making or repairing of a splice within the
meaning of Section 75.603, which defines a temporary splice as
"the mechanical joining of one or more conductors that have been
severed," or Section 75.604, which covers permanent splices in
trailing cables. Under the circumstances, I cannot conclude that
the taping of the cable constituted a violation of Section
75.604, and I take note of the fact that no violations

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~1463
were issued pursuant to any of the mandatory standards dealing
with trailing cable splices.

 The inspector's belief that Mr. Lewis was performing

"electrical work" when he taped over the nick in the deenergized
and locked-out trailing cable was based on the fact that the
cable was an electrical component of the piece of equipment in
question (shuttle car), and his assumption that Mr. Lewis would
not have locked out and tagged the equipment pursuant to Section
75.511, unless he performed electrical work. Section 75.511
requires the locking out and tagging of disconnecting devices by
the qualified or trained person doing the work. However, the
respondent was not cited for any violation because Mr. Lewis
locked out and deenergized the equipment.

 I cannot conclude that simply because someone peforms work

involving a piece of electrical equipment or component, such as a
trailing cable, that such work ipso facto constitutes electrical
work required to be performed only by a qualified person. MSHA's
policy authorizes repairs to electrical equipment by nonqualified
persons provided no energized parts or conductors are exposed.
The quidelines also allow nonqualified persons to perform work
handling energized trailing cables, inserting and removing cable
couplers from receptacles, and transporting cables. It seems to
me that this type of work, which does not require qualified
people to perform it, present potential hazards greater than
simply taping a nick in a trailing cable which has been
deenergized and locked out by the person doing the taping.

 I take note of the fact that MSHA's policy examples also

provide that work involving the installation, repair, or guarding
of trolley wires may be done by nonqualified persons. Although
the policy goes on to explain that Section 75.510 requires
training to repair and maintain energized trolley wires, it is
not clear whether training is required to repair or install
trolley wires which are not energized. I also note that pursuant
to the state regulations, the taping or reinsulation of cables
where there are no conductors or bare wires showing is not
required to be performed by a certified electrician, even though
"maintenance and repair tasks on electrical coal mining
equipment" is included in the state definition of "electrical
work."

 With respect to the locking out of the equipment and

trailing cable, I am not persuaded that electrical equipment is
only locked out if electrical work is going to be performed. The
inspector conceded that equipment is locked out regardless of any
electrical hazard "if you're working on it," and he agreed that a
person can be physically injured by a shuttle car or "hooked" by
the cable if the machine is inadvertently started (Tr. 96). I
take note of the fact that although Section 75.511 provides for

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the locking out and tagging of electrical disconnecting devices
by the qualified person doing the work, if that person is
unavailable, the locks and tags may be removed by a person
"authorized" by the operator to do so. In the instant case, since
his foreman gave Mr. Lewis the lock and instructed him to lock
out the machine, I assume that Mr. Lewis was "authorized" to
remove the lock.

 After careful consideration of all of the evidence and

testimony adduced in this case, including the arguments advanced
by the parties in support of their respective positions, I
conclude and find that the taping of the nick in the deenergized
and locked out trailing cable by Mr. Lewis was more akin to
mechanical work and was not electrical work within the meaning of
the cited section 75.511, and that the work was not required ot
be performed by a qualified person pursuant to section 75.153.
Under the circumstances, the contested citation IS VACATED.

                                 ORDER

 On the basis of the foregoing findings and conclusions, IT

IS ORDERED THAT:

      1.    Section 104(a) "S&S" Citation No. 3237405, May 9,
            1990, citing an alleged violation of 30 C.F.R.    75.511
            IS VACATED.

      2.    The petitioner's proposed civil penalty assessment
            for the vacated citation IS DENIED AND DISMISSED.

                              George A. Koutras
                              Administrative Law Judge