Consolidation Coal Company

Plain-English summary

Consolidation Coal settled citations in four dockets and 12 of the 13 citations in a fifth docket. The only fully litigated issue involved a damaged fuse holder on a mine jeep, which the Secretary said could expose riders to burns or create a collision hazard if power failed. Judge Jerold Feldman found a violation of the safe-operating-condition standard but concluded that the record did not support an S&S finding, so he modified the citation and assessed $105. The consolidated order affirmed the citations and settlements and set total payment at $2,915.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.1725(a)
• Outcome: Settled citations were affirmed, the litigated fuse-holder citation was modified to non-S&S, and total penalties were set at $2,915.
• Key point: A damaged component can violate a safe-operating-condition standard without an S&S finding when the record does not show a reasonable likelihood of serious injury.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CONSOLIDATION COAL
DDATE:
19930329
TTEXT:

      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 PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-1016
Petitioner : A.C. No. 46-01438-04017
v. :
: Docket No. WEVA 92-1017
CONSOLIDATION COAL COMPANY, : A.C. No. 46-01453-04019
Respondent :
: Docket No. WEVA 92-1065
: A.C. No. 46-01453-04027
:
: Docket No. WEVA 92-1095
: A.C. No. 46-01453-04030
:
: Humphrey No. 7
:
: Docket No. WEVA 92-1166
: A.C. No. 46-01452-03883-R
:
: Arkwright No. 1

                          DECISION

Appearances: Charles Jackson, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia
for Petitioner;
Daniel Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Feldman

 The above proceedings are before me as a result of petitions

for civil penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq., (The Act). These matters were scheduled
for hearing in Morgantown, West Virginia.

 At the hearing, the parties moved to settle the citations

associated with Docket Nos. WEVA 92-1016, WEVA 92-1017, and WEVA
92-1065 in their entirety. With respect to Docket No. WEVA 92-
1095, the Secretary presented his direct case for Order No.
3108895 and Citation No. 3108433. After the Secretary's
presentation I expressed my concern regarding certain factual
issues. I urged the parties to confer during a recess to discuss

settlement. The parties did ultimately reach an accord with
respect to this order and citation. The remaining citation in
Docket No. WEVA 92-1095 was incorporated in the parties'
settlement motion presented at the hearing. Thus, Docket Nos.
WEVA 92-1016, WEVA 92-1017, WEVA 92-1065 and WEVA 92-1095 have
all been disposed of through the settlement process.

 With regard to the remaining docket, the parties reached

settlement on 12 of the 13 citations contained in Docket No. WEVA
92-1166. The settlement motion proffered by the parties
concerning all of these dockets was granted on the record and
will be incorporated as part of this decision. The motion was
supported by information that was provided that pertained to the
penalty assessment criteria set forth in Section 110(i) of the
Act.

 The only matter heard was Citation No. 3313118 in Docket No.

WEVA 92-1166. Spencer A. Shriver testified on behalf of the
Secretary and William Lafferty and Robert Gross were called upon
to testify on behalf of the respondent. The parties stipulated to
my jurisdiction in this matter. At the conclusion of the hearing,
the parties elected to make closing statements in lieu of filing
post-hearing briefs. This decision formalizes the bench decision I
rendered at the conclusion of the parties' closing presentations.

 The essential facts are not in dispute and can be briefly

stated. Spencer A. Shriver has been a mine inspector for 15 years.
He has a Masters Degree in electrical engineering and he is a
certified mine electrician and registered professional engineer in
West Virginia. (Tr.115-116).

 On October 21, 1991, Shriver inspected the respondent's

Arkwright No. 1 Mine in accordance with Section 103(g) of the Act
as a result of a complaint received concerning the operating
condition of the respondent's jeeps and mantrips. Shriver was
accompanied by company representative Fred Morgan. Upon
inspecting the No. 9 Jeep, Shriver noted a damaged fuse holder
evidenced by several wraps of black plastic tape around the outer
perimeter of the fuse holder. The fuse holder is in line between
the jeep motor and the conductor coming down from the trolley wire
through the trolley pole. (Tr.118). The fuse holder contains a
fuse that is designed to stop the flow of current (blow) in the
event the conductor on the jeep became short circuited to the
frame. The fuse holder is comprised of a phenolic plastic material
that is designed to withstand heat resulting from arcing and
ultimate fuse failure. (Tr.118-212).

 Upon removing the tape, Shriver observed that the end cap of

the fuse holder had broken away. He proceeded to open the fuse
holder and noticed evidence of black soot which indicated the
presence of electrical arcing. He also observed a 1/8 inch hole
that had burned through the metal end of the fuse which also
indicated that arcing had occurred. Based on the fact that the
No. 9 Jeep was on the track parked in the mantrip spur, from
which jeeps are routinely taken back into the mine at the
beginning of each shift, Shriver concluded that the jeep was in
service. (Tr.120). Consistent with this conclusion, Shriver
testified that he did not recall anyone alleging that the jeep was
out of service. (Tr.121).

 Based upon these observations, Shriver issued Citation No.

3313118 citing a violation of the mandatory safety standard
specified in section 75.1725(a).(Footnote 1) The citation stated:
On wells bottom, No. 9 Jeep has fuse holder broken
on trolley pole. Fuse is taped into place but is not
making efficient electrical contact into end sockets.
A 1/8 inch hole has been burned in end of fuse from
arcing. A catastrophic failure of the fuse is
reasonably likely if the fuse remains in service.
Persons riding near the pole would be exposed to flash
burns and physical burns. Also, vehicle would be
disabled if fuse blew, and could result in wreck on
main line.

 The subject citation characterized the alleged violation as

significant and substantial. In support of his S&S designation,
Shriver testified that he believed that there were two hazards
associated with the defective fuse holder. The first hazard
concerned the possibility of injuries sustained to occupants of
the jeep in the event of a catastrophic failure of the fuse
holder.(Footnote 2) In such event, passengers of the jeep could
sustain flash burns to the eyes, actual physical burns to the head
and body, and possible shrapnel wounds. (Tr.131,133-134). The
second hazard was a loss of power due to fuse failure which could
result in a wreck caused by a collision with another track
vehicle.

 Shriver provided conflicting testimony regarding the

significant and substantial nature of these two hazards. For
example, Shriver testified that it was possible for the fuse to
just heat up and crumble away causing an interruption of the flow
of current without catastrophic consequences. (Tr. 196-197).
Moreover, Shriver testified that he could not remember any signs
of melting on the fuse holder. (Tr.202). In addition, Shriver
testified that there were vent holes on each end of the fuse
holder through which the conductor passed through. Thus, Shriver

conceded that the fuse holder was not airtight further minimizing
the chances of catastrophic failure due to heat or pressure
buildup. (Tr.190, 194, 226). Significantly, Shriver stated that,
with the exception of a fuse holder failure created by overloading
the fuse contained therein by two hundred to three hundred percent
in a laboratory setting, Shriver has never known of a catastrophic
failure of a jeep fuse holder. (Tr. 212,216). In fact, Shriver
admitted that this laboratory test was not analogous to the
routine current flowing through a jeep fuse. (Tr.218). Finally,
Shriver testified that it was unlikely from a "statistical
standpoint" that a catastrophic failure would occur. (Tr.199-200).

 William Lafferty and Robert Gross, employees of the

respondent, testified that in over 25 years of their combined
mine experience, they had never heard of a catastrophic failure
of a fuse holder. Gross also testified that he had contacted an
applications engineer of the fuse manufacturer who was also
unaware of any past catastrophic fuse holder failure. (Tr.241).

 As noted in my bench decision, I credit Shriver's testimony

that something "dramatic" such as popping or sparking might have
occurred given the continued operation of the jeep (Tr. 202).
However, the testimony, when considered in its entirety, does not
provide an adequate basis for concluding that catastrophic failure
of the fuse holder with resultant serious injury was likely to
occur.

 Shriver's testimony regarding the likelihood of a wreck was

also contradictory. In this regard, he stated that, assuming the
jeep lost power and was stranded on the track, the engineer of a
locomotive, if alert, could "probably see [the jeep] and probably
could stop." (Tr.155). Shriver also indicated that headlights on
a locomotive project approximately 200 feet. (Tr.156). While a
stalled track vehicle contributes to a potential wreck, one must
assume that the operators of other vehicles are alert and in
control of such vehicles. Thus, I conclude that this hazard was
also not significant and substantial in nature.

 As a result of the trial record, I issued the following bench

decision which is edited with non-substantive changes:

 The first issue is the fact of occurrence. Section
 75.1725(a) provides that mobile equipment shall be
 maintained in safe operating condition or be removed
 from service. There is no indication that this jeep
 was removed from service at the time of the inspection.
 There was no such allegation at the time of the
 inspection by Mr. Morgan and Mr. Morgan isn't here to
 testify. So I conclude that the jeep was in service.

   The issue of the safe operation of the jeep is
   dependent upon the condition of the fuse holder. I
   believe that the testimony is unrebutted that the fuse
   holder was damaged. It resulted in a loose connection
   which caused arcing and would have ultimately resulted
   in failure of the fuse.

   Therefore, I believe it was a violation of the
   regulation in that it was not safe to be in a vehicle
   in which the fuse could fail at any moment. In such an
   event, power could not be restored until the fuse was
   replaced. Restoration of power could be further
   delayed if replacement of the fuse holder was
   necessary. This would expose the jeep to a possible
   wreck and establishes that the jeep was not being
   operated in a safe condition.

   Having established the fact of occurrence, the second
   issue is the significant and substantial question. I
   find that a vehicle de-energized and exposed on a track
   creates a hazard. However, it is a hazard that can be
   mitigated by the person operating another vehicle on
   the track. Thus, I presume the attentiveness of the
   other operator and the ability of that operator to
   control the vehicle and avoid an accident.

   I now turn to the second hazard concerning catastrophic
   failure which was really the thrust of Mr. Shriver's
   testimony. I acknowledge Mr. Shriver's expertise in the
   area of electrical engineering. However, I am called
   upon to conclude, if I were to accept the Secretary's
   arguments, that there is a reasonable likelihood that
   damage to the fuse holder would result in catastrophic
   failure. In analyzing this issue, I am being called upon
   to conclude that something is reasonably likely to happen
   that has never happened before with the exception of a
   laboratory experiment that tripled the normal current to
   determine how much abuse a fuse holder could withstand. I
   do not equate this laboratory experiment with routine
   operation of a jeep.

   Moreover, even if I were to conclude that such a
   catastrophic failure could occur although it has not been
   shown to have previously occurred in the course of regular
   mining operations, I am asked to conclude that it would
   occur at a time when passengers would be so close to the
   fuse holder that they would sustain serious injuries. I am
   unable to conclude that such an event was likely to occur.

   Therefore, I conclude that this was a violation of
   75.1725(a). However, I am modifying the 104(a) citation to
   reflect that this violation was not significant and
   substantial in nature.(Footnote 3) Consequently, I am
   assessing a $105 penalty.

 In view of the above, I have removed the significant and

substantial designation from Citation No. 3313118. As a result, I
have reduced the proposed assessment from $157 to $105. The
penalty assessment for this citation and for the other citations
that have been settled in all of these docket proceedings is as
follows:

Docket No. WEVA 92-1166

Citation or Proposed Assessed Modified from
Order No. Penalty Penalty S&S to Non S&S

3715568 $213 $128 *
3715569 $213 $213
3715570 $213 $128 *
3715571 $213 $128 *
3715572 $213 $128 *
3716074 $105 $105
3715580 $ 98 $ 98

3313118 $157 $105 *
3715582 $213 $128 *
3716295 $213 $128 *
3716298 $213 $213
3715583 $213 $128 *
3715584 $213 $128 *

Docket No. WEVA 92-1016

3108483 $267 $267

Docket No. WEVA 92-1017

3108778 $309 $ 50 *
3108881 $ 50 $ 50

Docket No. WEVA 92-1065

3108775 $206 $206

Docket No. WEVA 92-1095

3108892 $267 $ 50 *
3108895(Footnote 4) $1,500 $267
3108433 $267 $267

1 Section 75.1725(a) provides:
"Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment
in unsafe condition shall be removed from service immediately."

2 Shriver equated a "catastrophic failure" with an explosion and
disintegration of the fuse holder. (Tr. 133-134).

3 As reflected in this decision, the significant and substantial
designation has been deleted from this citation.

4 The parties' motion to modify this citation from a 104(d)(2)
order to 104(a) citation was granted on the record. The
significant and substantial designation for the underlying
violation remains in effect.

                          ORDER

 ACCORDINGLY the citations as noted in the settlement motion

as well as Citation No. 3313118 addressed in this decision ARE
HEREBY AFFIRMED. Consequently, the respondent IS ORDERED TO PAY
a total civil penalty in the amount of $2915 in satisfaction of
the violations in issue. Payment is to be made within (30) days
of the date of this decision, and upon receipt of payment of this
matter IS DISMISSED.

                              Jerold Feldman
                              Administrative Law Judge

Distribution:

Charles Jackson, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)

Daniel E. Rogers, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

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