Consolidation Coal Company

Plain-English summary

Consolidation Coal was cited after an underground mine power cable was found on the ground with damaged outer and inner insulation. Judge Avram Weisberger found that the cable was not adequately insulated and fully protected as required by 30 C.F.R. § 75.517. He found the violation significant and substantial because restoring power could expose miners to shock, burns, fibrillation, or arcing and fire in a methane-liberating mine. The decision assessed a $250 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.517
• Outcome: The damaged-cable violation was affirmed as significant and substantial, with a $250 penalty.
• Key point: A mandatory mine-safety standard can impose operator liability for a dangerous condition without proof that the operator caused it through negligence.

Full text (FMSHRC public release)

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 92-935
Petitioner : A. C. No. 46-01318-04064
v. :
: Robinson Run No. 95 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                            DECISION

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

Before: Judge Weisberger

                     Statement of the Case

 This case is before me based upon a petition for assessment

of civil penalty filed by the Secretary (Petitioner), alleging a
violation by the Operator (Respondent) of 30 C.F.R. 75.517.
An
answer was duly filed, and pursuant to notice, the case was
scheduled for hearing on December 2, 1992, in Washington,
Pennsylvania, and heard on that date. Richard Gene Jones, and
Michael G. Kalich, testified for Petitioner, and Richard Lee
Moats, testified for Respondent. The parties filed post-hearing
briefs on January 22, 1993.

                Findings of Fact and Discussion

I. Violation of 30 C.F.R. 75.517

 On March 12, 1992, Richard Gene Jones, an MSHA Inspector,

inspected the 5-North Conveyor System of Respondent's Robinson's
Run No. 95 Mine. He observed a 12/4 power 120 volt cable that
was not in place hung on the wall, but instead was lying on the
ground in rib sloughage. When he picked it up, he noticed that
the outer jacket rubber insulation was torn for approximately
five inches. He also indicated that beneath the area where the
rubber insulation was torn, some of the insulation surrounding

the copper wires had been "peeled" or "scraped" and he could see
the wiring inside (Tr.30). Jones issued Citation No. 3107821
alleging a violation of 30 C.F.R. 75.517 in that the 12/4
power
cable "is not insulated adequately and fully protected. Near the
off-track side switch there is a location in the cable with an
extensively damaged 5-inch place that exposes the electrical
damaged conductors... ." (sic) Section 75.517, supra, provides,
as pertinent, that power cables "shall be insulated adequately
and fully protected."(Footnote 1)

 According to Jones, the purpose of the rubber outer jacket

is to provide protection to the cable wires from moisture, and
dust. It also protects the cable from being hit by foreign
objects. According to Jones, the outer jacket also provides
electrical insulation.

 The outer jacket of the cable in question was completely

removed for a distance of approximately 8 inches in length. The
width of the exposed area extended approximately 180 degrees
around the circumference of the cable. Further, the insulation
surrounding the individual interior copper wires was damaged, and
was no longer providing physical protection against moisture and
dust. Nor was it providing electrical insulation, i.e.
protection from phase-to-phase, and phase-to-ground contact.
Respondent's witness, Richard Lee Moats, did not rebut or impeach
the testimony of Jones in these regards. Nor did Respondent
offer any other evidence impeaching or contradicting Jones'
testimony in these regards. Accordingly, based on Jones'
testimony, I find that inasmuch as the cable in issue was not
insulated adequately and fully protected, Respondent herein did
violate Section 75.517, supra.

II. Significant and Substantial

1Initially, it was Respondent's position at the hearing that, in
essence, a violation of Section 75.517, supra, does not occur in
the absence of the proof that the violative condition was caused
by the Operator's negligence. I do not find this argument
persuasive, as it is well established that the mandatory safety
regulations impose strict liability on the operator. (See,
Western Fuels-Utah, 10 FMSHRC 256 (1988); Asarco, Inc., 8 FMSHRC
1632 (1986)). As such, if the facts establish that a certain
condition is violative of a mandatory standard, an operator is
liable even in the absence of any negligence on its part. A
discussion of the Operator's negligence is set forth subsequently
in this decision (Section III, infra) as it relates to the issue
of the operator's penalty.

 According to Jones the violation herein is significant and

substantial. A "significant and substantial" violation is
described in section 104(d)(1) of the Mine Act as a violation "of
such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. 814(d)(1). A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

        In order to establish that a violation of
   a mandatory safety standard is significant and
   substantial under National Gypsum the Secretary
   of Labor must prove: (1) the underlying violation
   of a mandatory safety standard; (2) a discrete
   safety hazard--that is, a measure of danger to
   safety-contributed to by the violation; (3) a
   reasonable likelihood that the hazard contributed
   to will result in an injury; and (4) a reasonable
   likelihood that the injury in question will be of
   a reasonably serious nature.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

        We have explained further that the third element
   of the Mathies formula "requires that the Secretary
   establish a reasonable likelihood that the hazard
   contributed to will result in an event in which there
   is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
   1836 (August 1984). We have emphasized that, in
   accordance with the language of section 104(d)(1), it
   is the contribution of a violation to the cause and
   effect of a hazard that must be significant and
   substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
   1866, 1868 (August 1984); U.S. Steel Mining Company,
   Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 With regard to the first element of Mathies, supra, I have

already found that the evidence establishes a violation of
Section 75.517, a mandatory safety standard.

 According to Jones, should the power cable be energized, a

person coming into contact with the unprotected non-insulated
section of the exposed power cable could suffer burns, electric
shock, or heart fibrillation. He also indicated that should
phase-to-phase, or phase-to-ground contact occur as a consequence
of the lack of the rubber insulation around the copper wires,
arcing could result, which could cause a fire, especially in the
presence of methane. In the main, this testimony of Jones has
not been contradicted, and, in essence, finds support in the
testimony of Michael G. Kalich, an MSHA electric inspector, who
also testified for the Petitioner. I thus find that the second
element of Mathies, supra, has been met. Accordingly, the
critical issue to be determined is whether the third element of
Mathies, supra, has been met, i.e., whether there was a
reasonable likelihood of either a person coming in contact with
the energized exposed portion of the cable, or of phase-to-phase,
or phase-to-ground contact in the cable when energized.

 The cable was attached to a coal feeder at one end. The

other end of the cable was attached to an on/off switch which
allows a miner to operate the coal feeder from a remote position.

When cited by Jones, the cable was not energized, as the section
was idle, and was not producing coal. The circuit breakers which
energized the cable were both in the off position. Hence, there
was no hazard at that time.

 However, it is critical, when making a determination as to

whether a condition is significant and substantial, to evaluate
that condition in terms of the continuation of normal mining
operations. (See U.S. Steel, 6 FMSHRC 1573, 1574). In this
connection, Kalich explained that, when production would resume,
the circuit breakers at the power center and feeder would be
re-set, thus causing electric power, 120 volts, to flow to the
damaged area of the cable in question. Richard Lee Moats, a mine
escort who testified for Respondent, stated that the foreman of a
section normally instructs his crew, at the beginning of the
shift before work commences, to check all cables and, as such,
the crew would have located the damaged area prior to
reintroducing electric power. Moats is neither a member of a
work crew working in the area, a foreman, or supervisor of a
foreman. Accordingly, I do not place much weight on his
testimony as to specifically what occurs in the area in question
in normal mining operations.

 According to Moats, on the date the citation was issued,

after the power was turned off, he examined the damaged area. He
indicated he saw that two of the copper wires had been severed.
On the other hand, Jones testified that it was extremely hard to

see the wires as they were too extensively damaged to check. He
said that it was difficult to tell if the wires were touching.
However, he indicated that he did not examine the wires to see if
they were touching. I observed Moats' demeanor, and I find his
testimony credible that, upon looking inside of the cable, he did
see that two wires were not touching, and I accept his testimony
in this regard.

 According to Moats, since two of the wires were severed, the

femco monitoring system would prevent the circuit breakers at the
power center from being reset, and power would not flow to the
wires in question. In contrast, according to Kalich, if two of
the wires in the cable are severed, current will still flow to
these wires. Further, in rebuttal, Kalich stated that the femco
system at the power center serves as protection only from the
power center to the feeder, and does not monitor the 12/4 cable
in issue, whose only protection is a 10 amp fuse. He indicated
that the feeder contains a transformer which reduces 480 volts of
current entering the feeder to 120 volts, which is transferred
out to the cable in question. Kalich explained that,
accordingly, if two of the wires in the cable are severed, only
120 volts would go beyond the transformer in the feeder to the
high side of the transformer. Kalich explained that accordingly,
there would not be enough current to trip the breaker, which is
set for 480 volts. Moats, who was recalled in rebuttal, did not
contradict the specific testimony of Kalich in these regards.
Accordingly, and based on Kalich's extensive work experience as
an electrical inspector, I accept his testimony in these regards.

 According to Jones, when he originally passed the cable in

question and observed that it was not in its place on the rib,
but instead was on the ground in sloughage, he bent to pick it up
to put it back on the rib. In this regard, he indicated that men
in the working crew automatically pick up cables that are laying
on the floor. Respondent did not contradict or impeach the
testimony of Jones in this regard. I therefore accept it.

 According to Kalich, arcing would result even if two of the

wires were severed, as they could come in contact when the cable
is picked up. Also, Kalich indicated that even if the wires
barely touched, arcing could result, which could lead to a fire.
He also noted that normally it could take up to a minute for a
fuse to blow, and that, in the one minute interval, arcing upon
phase-to-phase or phase-to-ground contact can occur.

 I find the testimony of Moats that two of the four wires

were severed, to be insufficient to diminish the likelihood of
contact between the wires, given the fact that the interior wires
were bare for approximately three inches, as testified to by
Jones and not contradicted by Moats. Further, according to the
uncontradicted testimony of Kalich and Jones, since the damaged
cable was in coal sloughage, and the coal seam is considered to

be very volatile, arcing from the cable can result in ignition.
This testimony was not contradicted by Respondent or impeached.

 Jones also noted the presence of methane on the date of the

citation. Although the amount of methane found at the face was
within the permissible range, and the area in question was
approximately 450 feet from the face, it should be noted that the
mine is considered to be a liberator of methane, as it liberates
a million cubic feet in a 24 hour period.

 According to Moats, on the date the citation was issued, an

emergency stop located at the feeder was locked out.
Accordingly, it would have to be unlocked and then reset to allow
power to flow. Moats indicated that, based upon his review of a
schematic diagram, Government Exhibit No. 3, he concluded that
with the emergency stop switch activated, power is cut off to the
cable in question. Moats, in his testimony, however, did not
specifically refer to the flow of power in this schematic diagram
to support his opinion. In contrast, Kalich, indicated the
specific circuit that is affected by the emergency stop.(Footnote
2) He also indicated that the flow of power to the remote
switch, via the cable in question, is a separate
circuit.(Footnote 3) Hence, according to Kalich with the
emergency stop switch activated power still flows to the cable in
question. Moats did not rebut this testimony. Hence, due to the
detailed nature of this testimony and the expertise of Kalich, I
accept it.

 Within the framework of all of the above, I conclude that

there was a reasonable likelihood of either a person coming in
contact with the exposed portion of the cable when energized, or
of arcing from the cable when energized causing a fire. Jones
and Kalich essentially testified that a person coming in contact
with the bare exposed wire in the cable would reasonably likely
suffer from burns, electrical shock, or fibrillation. Their
testimony also indicated that in the event of fire caused by
arcing, smoke inhalation, carbon monoxide poisoning, or other
injury would have been reasonably likely to have occurred.
Respondent has not rebutted this testimony and, accordingly, I
have accepted it. Therefore, for all the above reasons, I
conclude that it has been established that the violation herein
was significant and substantial (See U.S. Steel, supra).

III. PENALTY

 I find, based on the testimony of Petitioner's witnesses,

that once power would be restored, and normal operations' would
resume, should one contact the bare exposed wire, or should

2The green and yellow lines on Government Exhibit No. 3.

3See the red lines below "A" on Government Exhibit No. 3.

arcing occur, serious injuries could result. Thus, the violation
was of a high degree of gravity.

 According to Kalich, the rib near where the cable at issue

was located appeared as if a bumper of a car, or something sharp,
had hit it or rubbed against it. He also noted the presence of
sloughage such as loose, fine coal, which also supported this
conclusion. He said that when he made his inspection at
approximately 9:25 a.m., the shift was idle, and the coal that
had been knocked from the rib appeared fresh. He thus opined
that the incident knocking the cable off its place on the wall
and removing the insulation, occurred during the midnight shift.
He further opined that during an inspection of the belt which was
required to be performed between 5:00 a.m. to 8:00 a.m., the
person making the inspection would have passed this area and
should have observed the cable in question. He also indicated
that when he cited the cable, a supervisor was working 100 feet
outby and, although he would not have seen the cable, he would
have passed this area during the shift. On the other hand, Jones
could not establish with any certainty the exact time when the
incident occurred. Considering all of the above and, taking into
account the further factors set forth in Section 110(i) of the
Act, I find that a penalty of $250 is appropriate.

                          ORDER

 It is ordered that within 30 days of this decision,

Respondent pay a civil penalty of $250 for the violation found
herein.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

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

Daniel Rogers, Esq., Consolidation Coal Company, 1800
Washington Road, Legal Department, Pittsburgh, PA 15241

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