Consolidation Coal Company

Plain-English summary

Consolidation Coal used a trolley switch as a dead block at its Osage No. 3 Mine after removing the switch handle and blade but leaving the fingers attached. MSHA cited the practice under 30 C.F.R. § 75.520, and the Secretary sought a $50 civil penalty. Judge David F. Barbour found that the switch was safely designed, constructed, and installed, and that MSHA had stretched the standard to regulate a possible future work practice. He vacated Citation No. 3121684, granted the contest, denied the proposed penalty, and dismissed the penalty petition.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.520, 75.509, 75.511, and 75.1001.
• Outcome: Citation No. 3121684 was vacated, the contest was granted, and the proposed $50 penalty was denied.
• Key point: The standard required existing equipment to be safely designed, constructed, and installed. It did not support citing a possible future unsafe act when other rules already addressed that conduct.

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

CONSOLIDATION COAL COMPANY, : CONTEST PROCEEDING
Contestant :
: Docket No. WEVA 93-29-R
v. : Citation No. 3121684; 10/7/92
:
SECRETARY OF LABOR, : Osage No. 3 Mine
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 93-63
Petitioner : A.C. No. 46-01455-03960
:
v. : Osage No. 3 Mine
:
CONSOLIDATION COAL COMPANY, :
Respondent

                                     DECISION

Appearances: Charles M. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent.
Rebecca J. Zuleski, Esq., Furbee, Amos, Webb &
Critchfield, Morgantown, West Virginia,
for Petitioner.

Before: Judge Barbour

  This proceeding involves a Notice of Contest filed on

October 23, 1992, by Consolidation Coal Company ("Consol")
pursuant to Section 105(d), 30 U.S.C. 815(d), of the Federal
Mine Safety and Health Act of 1977 ("Act" or "Mine Act") and a
Petition for the Assessment of a Civil Penalty filed on
December 24, 1992, by the Secretary of Labor ("Secretary")
pursuant to Section 110(a), 30 U.S.C. 820(a), of the Act. In
the contest proceeding Consol seeks the vacation of Citation
No. 3121684, issued on October 7, 1992, pursuant to
Section 104(a) of the Act, 30 U.S.C. 814(a). The citation
alleges a violation of 30 C.F.R. 75.520.(Footnote 1) Consol
asserts that the citation was improperly issued because the
condition for

1 Section 75.520 provides:

All electrical equipment shall be provided with switches or other controls
that are safety designed, constructed and installed.

which it was cited did not violate Section 75.520. In the
Civil Penalty proceeding the Secretary seeks the assessment of a civil penalty
of $50 for the alleged violation of Section 75.520. The specific issue to be
resolved is whether a trolley switch with its handle and blade removed but
with its fingers attached and being used as a dead block on the main haulage
track constituted a safely designed, constructed and installed switch. A
hearing on the merits was held in Morgantown, West Virginia, on November 13,
1992.(Footnote 2) Following the hearing, the parties filed helpful briefs,
which I have fully considered in reaching this decision.

                            STIPULATIONS

  At the commencement of the hearing the parties stipulated as follows:
        1.   Consol is the owner and operator of the Osage No. 3 Mine.

        2.   The Osage No. 3 Mine is subject to the jurisdiction of the

Mine Act.

        3.   The Administrative Law Judge has jurisdiction to hear and

decide the case.

        4.   Federal Mine Safety and Health Administration ("MSHA")

Inspector Michael Kalich was acting in his official capacity when he issued
Citation No. 3121684.

        5.   True copies of Citation No. 3121684 and subsequent Action

No. 3121684-01 (the termination of the citation) were served on Consol and as
required by the Act.

        6.   The condition cited was abated in a timely

fashion.

                            THE EVIDENCE

                        THE SECRETARY'S CASE

  The first witness called by the Secretary was Michael G. Kalich.

Kalich, an electrical inspector with MSHA for almost six years, stated that
approximately 40 per cent of his time has been spent conducting electrical
inspections at Consol mines,

2 The hearing was noticed solely for the contest proceeding, the civil
penalty proceeding having not yet been filed by the Secretary. The parties
agreed, however, that evidence would be taken at the hearing regarding the
applicable civil penalty criteria and that the subsequently filed civil
penalty proceeding would be consolidated for decision with the contest
proceeding.

including the Osage No. 3 Mine. (The mine is located in MSHA District 3, the
district that has its headquarters in Morgantown, West Virginia.) Kalich
testified that he is currently assigned full-time to inspect the Osage No. 3
Mine and has been so assigned for the past two years. However, even prior to
being assigned to the mine, he occasionally had inspected there.
Tr. 25-26. Thus, Kalich believed that he was thoroughly familiar with the
mine.

  Turning to the events of October 7, 1992, Kalich stated that he went to

the mine to continue an ongoing electrical inspection. He arrived at the mine
around 7:45 AM and went to the mine office where a discussion was underway
involving Dale Denning, a regular (i.e., non-electrical) MSHA inspector, Spike
Bane, safety director for Consol and Bill Kun, Consol's mine safety officer.

  According to Kalich, the discussion centered upon the use as dead blocks

of trolley switches when the fingers had not been removed from the
switches.(Footnote 3) Kalich stated that the use of such section switches was
an ongoing controversy at the mine and that Consol wanted to be cited for so
using the switches in order to contest the citation and resolve through the
administrative hearing process whether it had, in fact, violated the cited
regulation. Because Denning was a regular inspector, not an electrical
inspector, Denning was reluctant to issue the citation; therefore, Kalich
agreed to do it. Tr. 27-28.

  Kalich proceeded underground accompanied by Kun and the UMWA walkaround

representative. The inspection party traveled the main haulageway to the No.
571 Block at the 14 North ITE Breaker where Kalich observed a trolley switch
installed and used as a dead block. The switch had its handle and blade
removed, and the handle and blade were not located near the switch, but the

3 In the context of this case, the term "dead block" refers to an
electrical device or control on a mine trolley system that separates portions
of the trolley system wiring. Trolley wire enters the device from both of
its ends. Each side of the wire is from a separate portion or block of
trolley system wiring. The trolley wires do not meet, rather an air gap in
the center of the device prohibits any direct current from crossing between
the two ends of the trolley wires, in part to assure short circuit protection
on each block of power. The air gap between the wires must be wide enough to
prevent the current from crossing, and narrow enough so trolley cars will
continue to run evenly when traveling along the track and changing from one
portion of the electrical system to the other.

  The type of trolley switch used as a dead block is depicted in

Contestant's Exhibit 3. ("C. Exh."). As the exhibit makes clear, the wires
enter both ends of the switch. The air gap between the ends of the wires is
bridged by a switch handle and blade, which when opened (i.e., when used to
connect the two wires), pivots between two metal flanges or protrusions at the
end of the switch and slides into two basically similar metal flanges or
protrusions at the other end. These flanges or protrusions are the section
switch's "fingers".

switch's fingers were still in place. Kalich believed that the presence of
the switch in this condition was a violation of Section 75.520, and he
accordingly issued the subject citation. Tr. 29.

  The citation states:

        At the 571 + 000 Block along the main haulage at the
        14 North ITE Breaker the dead block in use was not
        properly maintained. A trolley switch with a handle
        removed was being used as a dead block. The switch
        fingers were still installed. The dead block is used
        to separate the 300 Volt DC power feeding from the
        Moorsville bore hole and the 1 Butt Rectifier. This
        condition enables the dead block to be easily jumped
        with the switch handle and poses an electrical arc or
        burn hazard and possibly renders the trolley short
        circuit protection useless. These conditions have
        been found cited at this mine in the past.

Secretary's Exhibit ("S. Exh.") 2.

  Kalich testified that the citation was terminated the following day by

Denning. To abate the citation, Consol removed the fingers from the switch.
Tr. 30, G. Exh. 2 at 2. Kalich also testified that he modified the citation
to reflect a finding that the cited condition constituted a significant and
substantial contribution to a mine safety hazard. Tr. 30-31, G. Exh. 2 at 3-
4.(Footnote 4) When asked to describe the unsafe nature of the condition
cited, Kalich answered:

        [T]he condition is unsafe because with the fingers
        still installed, it's very easy for anyone to jumper
        the dead block. The dead block would be jumpered with
        the switch handle or, . . . it could be jumpered with
        a fuse even.

Tr. 32.

  Kalich was shown copies of pages from a catalog published by Dusquesne

Mine Supply Company ("Dusquesne") and was asked to point out the type of
switch that was used as a dead block.

4
Interestingly, MSHA has proposed a civil penalty assessment of $50,
based upon its single penalty assessment provision, a provision inapplicable
to S&S violations. 30 C.F.R. 100.4. See Proposed Assessment, Exhibit A,
Docket No. WEVA 93-63.

Kalich identified Dusquesne as a manufacturer of trolley switches and stated
that as best he could recall, Model No. 5,000-R was the type that he had
cited. Tr. 34, C. Exh. 3 at 2.(Footnote 5) Using the catalog as a point of
reference, Kalich turned to a schematic drawing of a switch and identified
where the trolley wires were connected to the switch. He labeled these as
positions "A". He also identified the handle and blade depicted in the
drawing, which he labeled "B". Tr. 37, S. Exh. 3 at 4. He marked the
fingers, "C". Tr. 37, S. Exh. 3 at 4. Finally, Kalich pointed out a diagram
that he stated was specifically designed to be used as a dead block. Tr. 39,
S. Exh. 3 at 3.(Footnote 6)

  Kalich then described the purpose of a dead block. He stated that it

separates and isolates two different sections of trolley wire. Separation and
isolation allows trolley wire short circuit protection to be maintained on the
isolated sections. Without a dead block the joined sections of wire are too
long and short circuit protection may be rendered ineffective. Tr. 39-40.

While Kalich admitted that the use of a trolley switch with the handle and
blade removed constituted an effective dead block in that it completely
separated the different sections of trolley wire, he was of the opinion that
the section switch so used was not safely designed, constructed and installed
because the presence of the fingers "makes it real easy to jumpering the dead
block." Tr. 40. He explained that the dead block could be jumpered by the
reinstallation of the handle and blade into the fingers. He stated that he
also had heard of jumping the dead block by laying a piece of trolley wire
across the gap or by using jumper cables (i.e., nipped jumpers). Tr. 41. In
Kalich's opinion, if power were lost on one of the sections of the trolley
wire, rather than correct the condition that had caused the power loss, miners
would be tempted to do the easy thing and jumper the dead block to restore
power to the affected trolley wire section. While it would be more difficult
to replace the handle and blade than to remove it, an untrained person could
do it if he or she wanted to. Tr. 43.

  Kalich also explained that after initially concluding the violation was

not S&S, "I . . . went back to the office and thought about it for a while and
. . . realized that we were

5 Kalich also explained that there are other manufacturers of trolley
switches, notably, Ohio Brass. However, he stated that their switch designs
are basically similar. Tr. 35.

6 This equipment is labeled "Dukane No. 5800 Section Insulator for trolley
wire and feeded cables." It is similar to a section switch, except that it
lacks the fingers, handle and blade of a section switch. See S. Exh. 3 at 3.
Or as Kalich put it, "[the section insulator] doesn't have a place for a
switch handle." Tr. 99.

going to use this as a test case not just for . . . the Osage Mines [sic], but
all the mines in the district . . .
[a]nd . . . I reviewed accidents and . . . fatalities that have happened
because of electric shock from the trolley wire or from mine fires. And . . .
decided to make it S&S." Tr. 44-45.

  He continued, that the dead block was on the main haulage where miners

had access to all the operating sections of the mine and that "it would be
pretty tempting for somebody to jumper the dead block if the rectifier or bore
hole would . . . go down
. . . and they would need the power in the area." Tr. 45.

  He further explained that in the particular area of the dead block power

feeds from two directions - - from the Mooresville Portal bottom to the dead
block and from the One Butt rectifier to the dead block. If the power from
the bore hole on the rectifier were shut down, "it would de-energize that
section of trolley wire for approximately 2,000 feet and then you would still
have power on one-half of the dead block. And if you inserted the knife blade
. . . into [the fingers of the dead block] . . . then that would provide a
path for . . . current to flow from the energized side to the de-energized
side." Tr. 46. Kalich maintained that if this happened, frequently there
would not be sufficient current available to cause the circuit breaker to de-
energize the expanded circuit if there were a short. This in turn could lead
to arcing and sparking and the catching fire of combustible materials in the
vicinity of the electrical malfunction. Tr. 47. Such a fire could endanger
all miners inby the ignition by subjecting them to possible burns and smoke
inhalation. Tr. 50.

  Kalich believed that 10 years ago a fire caused by inadequate circuit

breaker protection due to jumping had occurred at Eastern Associated Coal
Corporation's ("Eastern") Federal
No. 2 Mine and that 5 years ago a similar fire had occurred at Consol's
Arkwright Mine. Tr. 66-67.(Footnote 7) However, no such fire had ever
occurred at Osage No. 3 Mine. Tr. 90.

  In addition, Kalich believed that there was a shock and electrical burn

hazard visited upon the miner jumpering a trolley switch dead block in that
the insertion of the knife blade into the fingers could lead to arcing and
sparking at the knife blade, or the miner inserting the blade could
accidentally touch the energized portion of the trolley wire and be
electrocuted. See Tr. 49- 50, 64, 65.

7 Kalich stated that his knowledge of the Arkwright fire was based on what
he had been told by another MSHA inspector. Tr. 92.

  Regarding negligence, Kalich stated that mine management knew the

fingers were on the dead block. Further, he stated that Consol had been cited
at other of its mines in the MSHA district for using trolley switches as dead
blocks. Tr. 55. He maintained that over the past two years and prior to
issuing the subject citation, he had met with Consol management personnel "at
least six times" to discuss the unacceptability of using as dead blocks
section switches with fingers in place. Tr. 88. Thus, Consol management knew
that the practice was unacceptable to MSHA.

  Kalich stated that although Consol management advised him the reason the

fingers were not removed from the section switches was to be able to jumper
the dead blocks fast in case of an emergency need to evacuate an injured
miner, he did not believe it. Kalich had never heard of an occasion wherein
the two circumstances supposedly feared by Consol -- a miner being injured and
a trolley line section being de-energized -- had occurred at the same time.
Tr. 61. Rather, he believed the real reason Consol management wanted to keep
the fingers on the dead blocks was to be able to continue production and the
transportation of men and materials if a trolley wire section
de-energized. Tr. 62. In fact, he stated, he had issued citations to Consol
for violations of Section 75.520, where dead blocks had been jumpered for this
very purpose.(Footnote 8)

  With regard to the extent of the practice in MSHA District 3, Kalich

testified that he had seen section switches with fingers used as dead blocks
at Consol's Arkwright, Humphrey and Blacksville mines, as well as at Eastern's
Federal No. 2 Mine. However, at mines owned by USX Corporation, section
insulators had been purchased and installed, and section switches had not been
used. Tr. 68.

  According to Kalich, the policy in District 3 regarding the use as dead

blocks of section switches evolved over the years. He stated that at first he
did not recognize the hazards associated with the practice. However, as time
passed he became more aware of the hazards. In 1990 he began informing mine

8 Kalich also stated that he had issued citations to Consol for violations
of 30 C.F.R. 75.1001 where section switches had been jumpered and short
circuit protection had not been provided. Section 75.1001 states:

             Trolley wires and trolley feeder wires
             shall be provided with over current
             protection.

operators in District 3, including Consol, that he considered the use as dead
blocks of switches with fingers to be violations of Section 75.520. Tr.
71(Footnote 9)

  Kalich reached this conclusion solely on the basis of his own opinion.

He stated and that there was and is no MSHA policy memorandum or written
instruction of which he is aware regarding the use of section switches as dead
blocks. Tr. 101, 104,
116-117.

  Kalich believed that he and other inspectors in the district originally

brought the problem to the attention of Michael Hall, Kalich's supervisor.
Tr. 113. Gradually, it became a district-wide policy not to accept section
switches with fingers attached as dead blocks.

  With regard to abatement, Kalich stated that operators have an option.

Either, they can remove the section switch and replace it with equipment
designed to serve only as a dead block (i.e., a section insulator), or they
can knock off the fingers with a hammer. Tr. 124.

  Kalich acknowledged that prior to jumpering a section switch, short

circuit protection could be provided if a miner went to the rectifier and
reset the short circuit protection. Tr. 143-144.(Footnote 10) Kalich also
stated that 30 C.F.R. 75.509 prohibits reinstalling a handle and blade while
the trolley wire is energized. Tr. 168-169, 172.(Footnote 11) He further
agreed that if there were compliance with this regulation the electrical
hazard to the miner posed by the procedure of jumpering the section switch
would be eliminated. However, Kalich believed that once power was restored,
the hazard posed by not having proper short circuit protection would remain,
assuming that there had been no compliance with Section 75.1001. Tr. 172.
Even if there were

9 The Secretary offered into evidence citations issued at Osage No. 3
Mine, Humphrey No. 7 Mine,, Blacksville No. 1 Mine, all of which were issued
prior to the subject citation and all of which alleged violations of
Section 75.520 for the use as dead block of section switches with fingers.
G. Exh. 4, G. Exh. 5, G. Exh. 9, G. Exh. 10.

10 Kalich testified that on some rectifiers, short circuit protection can
be adjusted by turning a thumbwheel. Id.

11 Section 75.509 states:

             All power circuits and electric equipment
             shall be de-energized before work is done
             on such circuits and equipment, except
             when necessary for trouble shooting or
             testing.

full compliance with Sections 75.509 and 75.1101, Kalich believed that there
would still be a violation of Section 75.520, "because the fingers would still
be on the switch. If the fingers are removed from the switch then it's not a
violation." Tr. 173.

                             CONSOL'S CASE

  John Burr, the manager of electrical engineering in Consol's Maintenance

Electrical Department, was Consol's first witness. Burr stated that he has 22
years of experience as an electrical engineer with Consol. Tr. 176. Burr
testified that after the subject citation was issued he was called by Spike
Bane and was asked whether he considered the use as a dead block of a section
switch with the handle and blade removed and the fingers attached to be a
violation of Section 75.520? Tr. 178. Burr stated that he did not and that
when used as a dead block such a section switch was safely designed, installed
and maintained. Tr. 201. Further, in his opinion, if the blade was
reinserted and the procedure was done as prescribed by the regulations - -
i.e., power was de-energized in both blocks (Section 75.509) and circuit
breaker protection was properly set (Section 75.1001), there would be no
hazard. Id. Also, as Burr noted,
Section 75.511 requires that such work be done by a qualified electrician.
Tr. 216.(Footnote 12)

  Burr described the functional difference between a section insulator and

a section switch (or as Burr termed it, a "line switch"). The section
insulator is used when it is assumed that under no circumstances the operator
will want to tie together the two blocks of power on both sides of the
insulator. The section switch is used when the operator feels that there are
times when the switch will have to be open and other times when it will have
to be closed. Tr. 184-185.

  According to Burr, Consol initially left the handles and blades attached

to section switches that it had installed. However, MSHA District 3
personnel, subsequently, advised Consol that MSHA would not accept switches
with the handles and blades attached because anyone could come along and throw
the switches. At that point, Consol agreed to remove the handles and bladesV
because the switches did not have to be opened on a regular basis. Tr. 187.
At first, Consol stored the handles and blades

12 30 C.F.R. 75.511 states in pertinent part:

              No electrical work shall be performed on
              low-, medium-, or 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.

in the area of the section switches because Consol fully intended to use the
handles and blades when it opened the switches. After awhile, according to
Burr, MSHA objected to this too, and pursuant to MSHA's objection, the handles
and blades now are stored in the possession of qualified electricians and
maintenance personnel and away from the switches. Tr. 188. Currently, MSHA
is requiring the removal of section switch fingers as well.

  Burr also stated his understanding of procedures usually undertaken at

Consol if a section switch handle and blade has to be installed. The power is
de-energized so that the procedure does not present a hazard to the miner
doing the work and circuit breaker protection is provided, frequently, by
adjusting a thumbwheel switch on the over current relay. Tr. 189, 191.
(According to Burr, approximately 90 percent of the relays at the Osage No. 3
Mine have thumbwheel switches. Tr. 218.) In addition, Burr claimed that at
every section switch used as a dead block Consol has hung a sign stating "Dead
Block Do Not Put Blade In". Tr. 199-200, See C. Exh. 5.

  Burr stated that the use of section switches as dead blocks is standard

practice throughout Consol's mines. Tr. 209. Removing the fingers
essentially destroys the dead block for use as a switch because the fingers,
which are welded or wedged in place, must be "hacksawed" off. Tr. 210.

  Bill Kun, the safety supervisor at Osage No. 3 Mine and a mine foreman,

testified next. Kun described his version of how the contested citation came
to be written. He stated that at approximately 7:30 AM, on October 7, 1992,
Dale Denning, the regular MSHA inspect at Osage No. 3 Mine, arrived and told
Kun he was going to "write every . . . dead block in the . . . mine that
didn't have the fingers taken out." Tr. 247. According to Kun, Denning said
that he had been told to do it. Kalich arrived about 10 minutes later and
Denning said to Kun that he would let Kalich take care of it. Spike Bane then
arrived and said that it was "Ok" to have a citation issued because Consol
intended to contest the citation in order to "get it straightened out," that
Consol contended there was "no violation at all." Tr. 250. Kun estimated
that there are approximately 170 section switches at the mine of which 37 to
39 have the handles and blades removed in order to be used as dead blocks.
Id.

  Regarding the history of the controversy, Kun stated that prior to 1990,

the only thing he was ever told by MSHA about the use of section switches as
dead blocks was to not leave the blades at the location of the dead blocks.
Spencer Shriver was MSHA's electrical inspect then, and he is the person who
told Kun. Tr. 253. Later, Shriver also told Kun that the fingers should be
removed from the section switches. Tr. 258.

  Kun estimated that section switches cost between $360 to $400 apiece and

section insulators each cost between $260 to $270. Tr. 255. Kun further
stated that when blades are removed they are kept with the maintenance
department and with a certified electrician "because they're the ones that
have been instructed to put them in if need be." Tr. 260.

  Consol's next witness was Gary Mair, general manager of Dusquesne Mine

Supply Company. Mair testified that with respect to products that it produces
for the mining industry, the company is primarily involved in the manufacture
of trolley system items. Tr. 266. Mair also stated that he was advised of
the existence of the subject citation by Spike Bane. Tr. 269.

  Mair said that he believes that section switches made by Dusquesne are

safely designed. Tr. 270. He testified that the basic product design was set
12 years ago and has never experienced a failure. He further stated that each
section switch is properly constructed, and he described the process by which
each is made. Tr. 271-272. He also stated that at Osage No. 3 Mine, the
switches are properly installed. Tr. 172. Because of the way the switches
are manufactured, Mair said that there are only two ways to remove the fingers
-- saw them off or try to knock them off with a hammer. Tr. 277. He
acknowledged that section switches could be replaced with section insulators
(Tr. 284), and he confirmed that section switches cost approximately $100 more
apiece than section insulators. Tr. 280.
Mair stated that section switches and section insulators differ (aside
from the handles and blades on the section switches) only in that the section
switches have fingers and the section insulators do not. Their main frames
are essentially the same. Tr. 281.

  As its last witness, Consol called Michael Hall to testify. Hall is the

chief electrical engineer for MSHA District 3. Hall also is the supervisor of
the District 3 electrical section and has been since 1978. Tr. 287. As such,
he supervises the 7 or 8 electrical inspectors in District 3, including
Kalich.

  Hall explained that in the 70's and 80's, District 3 had accepted

section switches with handles and blades removed as dead blocks. Tr. 293.
Then MSHA began getting reports from inspectors that they were finding section
switch handles and blades hanging right beside the section switches, an
indication that the blades were being inserted to jumper the dead blocks. Tr.

297. Hall explained the problem confronting MSHA as follows:

         "[T]hese switches that . . . had the switch handle - -
         - switch blade removed, we were finding people were
         bypassing these switches
     
         with various devices, either with a switch blade or
         with a fuse or some other method which caused the
         person who was doing that to be exposed to unsafe
         voltages."
     

Tr. 299. Hall also believed that the practice caused short circuit problems
which in turn could cause burn injuries to miners or a mine fire. Tr. 311.
Hall admitted that MSHA personnel had done no testing or experimentation to
assess any shock, burn and fire hazards associated with the practice.
Tr. 302.

  Hall stated that MSHA's concern was its fear that the section switch

used as a dead block would be used in an unsafe manner. Tr. 326. Hall agreed
that with respect to the use as dead blocks of section switches with fingers,
a violation of
Section 75.520 is premised upon the assumption that miners will not at all
times act in compliance with Sections 75.1001, 75.509 and 75.511. Tr. 327.
The fingers on the section switches are an incentive to miners to violate
those regulations because they make it too easy to jumper the dead block. Tr.
328.

                            THE VIOLATION

  Because I conclude that the cited section switch was safely designed,

constructed and installed and that, in any event, MSHA, in regulating a future
work practice through the application of Section 75.520, stretched the
standard beyond reasonable and permissible bounds, I hold that a violation of
Section 75.520 did not exist.

  In specifying that "[a]ll electric equipment shall be provided with

switches or other controls that are safely designed
constructed and installed," Section 75.520 repeats
Section 305(o) of the Mine Act. 30 U.S.C. 865(o). The legislative history
of the interim mandatory standard states:

        This section requires that electric equipment be
        provided with switches or other safe control[s] so
        that the equipment can be safely started, stopped, and
        operated without danger of shock, fire, or faulty
        operation.

S. Rep. No. 411, 91st Cong., 1st Sess. 68, reprinted in Senate Subcommittee on
Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I
Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at
194 (1975). No argument has been presented that the cited section switch was
not a "switch or other control of electric equipment." Indeed, when used as a
dead block, the section switch segregated and

controlled the current available to the power block sections of the trolley
wire that it separated. Therefore, I find that the cited equipment had to
conform to the requirements of
Section 75.520.

  That being the case, the question is whether the equipment was "safely

designed, constructed and installed." There is no doubt, I think, that in and
of itself, the cited section switch was safely designed and constructed.
"Design" is defined as
"the drawing up of specifications as to structures, forms, positions,
materials, texture, accessories . . . in the form of a layout for setting up,
building or fabrication." Websters Third New International Dictionary
(Unbridged) at 611-612 (1986). "Construct" is defined as "to form, make,
create by combining parts." Id. 489. Thus, design and construction of the
referenced switches and controls refers to their structural integrity, to the
manner in which they have been conceived on paper, modeled and to the manner
in which they have been fabricated. In this regard, the question is whether
there is anything inherently unsafe about the cited component resulting from
its configuration and structure? Clearly -- or so it seems to me -- the
answer is "no".

  There was general agreement that there is no standard definition of

"dead block", but that the purpose of such equipment is to separate blocks of
power on a trolley line.
To effectuate the separation there must be an effective air gap between
conductors that enter the dead block mechanism from both sides. Mair
testified that the basic design of a section switch and a section insulator is
the same -- except for the blade, its handle and the fingers -- and that the
design in question, which has been unaltered for the past twelve years, has
never experienced a failure. His testimony was not rebutted. There was
simply no evidence offered that the configuration and structure of the cited
equipment was, in and of itself, hazardous. I conclude, therefore, that the
cited section switch was safely designed and constructed.

  The next question is whether the section switch was safely installed?

In Mettiki Coal Corp., l3 FMSHRC 760, 768 (May l99l), the Commission noted
that the word "install" means "to set up for use or service." Webster's at
ll7l. The use or service of equipment involves putting the equipment to a
given purpose once it is in position to function and thus involves the
relationship of miners to the equipment in the ongoing mining process. In the
context of Section 75.520, this means that a switch or control, once in place,
must not pose a hazard to miners during normal ongoing mining operations.

  Of course, the entire thrust of the Secretary's case is that the cited

section switch posed such a hazard. Kalich repeatedly explained that the use
as a dead block of a section switch with

its fingers attached made it too easy for the dead block to be jumpered with
resulting hazards possible both to the miner performing that operation and to
other miners as well. In Kalich's opinion, the miner jumpering the switch
could be subjected to a shock hazard from working in close proximity to the
energized trolley wire. Tr. 44-45, 64-65. Further, other miners could be
subjected to the fire hazards presented when adequate short circuit protection
was not provided in conjunction with the jumpering of the dead block. Tr. 43,
47, 50. Hall echoed Kalich's concerns. Tr. 311.

  While I do not doubt that these hazards can and do exist, they are

anticipatory. As both Kalich and Hall freely admitted, they rest upon the
assumption that miners will purposefully act in derogation of regulations
which, if complied with, eliminate the hazards altogether -- i.e., that they
will not de-energize the circuits and equipment as required by Section
75.509, that they will not provide adequate short circuit protection
once the section switch has been jumpered as required by
Section 75.1001, and that jumpering will not be done by a qualified person or
under the direct supervision of a qualified person as required by Section
75.511. See Tr. 49, l68-l69,
l72, 327.

  Further, there are safe ways to jumper a section switch, even if the

fingers are attached to the switch, See e.g., Tr. 49. As the testimony of
Kalich and Hall made clear, it is not the use of the section switch as a dead
block and its jumpering that is unsafe, it is the manner in which the
jumpering is done.
Thus, -- and this gets to the heart of the matter -- it is not the design,
construction or installation of the cited equipment that is the focus of the
contested citation and the reason for its issuance but a work practice that
may in the future be associated with the equipment -- a practice that would be
eliminated by compliance with existing regulations.

  There are serious flaws with this approach to compliance. One is that

MSHA must cite existing violations of regulations, not those that it
anticipates may occur at some unspecified time in the future.(Footnote 13)
Another is that prohibition of a hazardous work practice is best regulated
through specifically addressing the practice -- as, for example, in the
standard regarding

13 The citation of existing violation is, of course, exactly what MSHA does
when it finds that in jumpering a section switch, an operator fails to de-
energize the circuit, fails to have the work performed by a certified person,
or fails to provide short circuit protection. See e.g, Secretary of Labor v.
Ronald Weaver, 14 FMSHRC 1647, (September 1992) (citation issued for failure
to comply with Section 75.1001).

repairs or maintenance on mobile and stationary machinery (30 C.F.R.
75.l725(c)) -- rather than by trying to prohibit the practice through
stretching beyond reasonable limits the interpretation of an existing
regulation.

  This is particularly true when, as here, the regulation MSHA seeks to

expand is broad to begin with. The Commission has noted that Section 75.520
is the type of broadly worded standard that is not unenforceably vague,
provided a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the specific
prohibition requirement of the standard. Mettiki, l3 FMSHRC at 768-769. It
has further stated that the standard cannot be "so ...uncertain that [persons]
of common intelligence must necessarily guess at its meaning and differ as to
its application." Id. at 768 (quoting Alabama By-Products Corp., 4 FMSHRC
2l28, 2l29 (December l982)).

  As the testimony establishes, the history of MSHA's enforcement actions

with regard to the use as dead blocks of section switches with their fingers
attached is one premised upon changing interpretations of what the standard
requires. First, the section switches were accepted provided their handles
and blades were removed. Tr. ll8-ll9, 293. Next, they were accepted,
provided the handles and blades were removed and were kept elsewhere. Tr.
127, 187-188, 253. Finally, they were accepted provided the handles and
blades were kept elsewhere and the fingers were removed. Tr. 258, 301. It
seems to me that this changing interpretation of what is required by the
standard establishes that, at least as applied to the facts of this case,
persons of common intelligence must necessarily guess at its meaning and
reasonable could differ as to its application.

   I am sympathetic to the concerns of Kalich and Hall regarding the

dangers they believe to be inherent in the practice of jumpering dead blocks
when such work is not done by a certified person or under the supervision of a
certified person and when there has not been compliance with Sections 75.509
and 75.1001. I do not doubt for an instant that in establishing a "fingerless
section switches" policy for MSHA District 3 they were motivated by a
commendable concern for the safety of those miners who come within their
jurisdiction and of whose well-being they are required ever to be mindful.
Lacking a specific regulation concerning the practice and, perhaps, lacking
guidance from MSHA as well, they acted to protect miners from themselves.
While their motives were laudatory, their means were not; for in so doing I
believe that they acted beyond the proper scope of Section 75.520.

  In view of the foregoing, I conclude and find that Citation No. 3l2l684

does not set forth a violation of Section 75.520 and accordingly must be
vacated.

                                 ORDER

  It IS ORDERED that Section l04(a) Citation No. 3l2l684, dated October

l2, l992, and citing an alleged violation of
30 C.F.R. 75.520, is VACATED. Consol's contest of the citation is GRANTED.

  It is further ORDERED that MSHA's proposed civil penalty assessment for

the alleged violation of Section 75.520 is DENIED and its petition is
DISMISSED.

                                          David F. Barbour
                                          Administrative Law Judge

Distribution:

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

Rebecca Zuleski, Esq., Furbee, Amos, Webb, & Critchfield, 5000 Hampton Center,
Suite 4, Morgantown, WV 26505 (Certified Mail)

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