<DOC>
[DOCID: f:c-9681.wais]
FALKIRK MINING COMPANY
January 13, 1997
CENT 96-81
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
January 13, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 96-81
Petitioner : A.C. No. 32-00491-03514 :
:
v. :
: Falkirk Mine
FALKIRK MINING COMPANY, :
Respondent :
DECISION
Appearances: Kristi L. Floyd, Esq., Office of the
Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Andrew S. Good, Esq., North American Coal
Corporation, Dallas, Texas, for Respondent.
Before: Judge Manning
This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Falkirk
Mining Company ("Falkirk"), pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. �� 815
and 820. The petition alleges one violation of the Secretary's
safety regulations.
A hearing was held in Washburn, North Dakota. The parties
presented testimony and documentary evidence, but waived post-
hearing briefs. For the reasons set forth below, I affirm the
citation and assess a civil penalty of $50.
I. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Background
Falkirk operates the Falkirk Mine, a surface coal mine, in
McLean County, North Dakota. On September 13, 1995, MSHA
inspec-tor Calvert Browning issued Citation No. 4058725 to
Falkirk alleging a violation of 30 C.F.R. � 77.502. The
citation states:
The electrical power connections were
unguarded and exposed where the welding leads
connected to the generator mounted on the 369
belt maintenance truck. Adequate examina-
tions were not made to disclose a potentially
dangerous condition.
On November 5, 1995, MSHA issued a subsequent action notice
for the citation, which states as follows:
Citation No. 4058725, issued on 09-13-
95, for a violation of 77.502, was modified
during a Health and Safety Conference held
10-27-95. Mitigating information provided by
the operator and the results of the confer-
ence were as follows:
The Part and Section of Title
30 CFR was modified to indicate the
proper standard. The electrical
connections were not insulated to
the same degree of protection as
the remainder of the wire.
Section I, item 9c is modified to
indicate 77.504.
Section 77.504, entitled "Electrical Connections or Splices;
Suitability," provides:
Electrical connections or splices in
electric conductors shall be mechanically and
electrically efficient, and suitable connec-
tors shall be used. All electrical connec-
tions or splices shall be reinsulated at
least to the same degree of protection as the
remainder of the wire.
Inspector Browning determined that the alleged violation was
neither serious nor of a significant and substantial nature
("S&S"). He also determined that Falkirk's negligence was
moderate. The Secretary proposed a penalty of $50 for the
citation.
The basic facts in this case are not in dispute. The cited
equipment is a welding machine that generates DC current for
welding operations. Two posts are on the front of the
welding machine (the "welder"), one marked positive and the
other marked negative. These posts are recessed from the
vertical plane of the front of the welder. Welding leads
are attached to each of the posts with lugs. The lugs are
placed around the posts and tightened. A nut is also
attached to the top of each post. An insulated wire is
attached to each lug. These wires are welding leads that
are used in welding operations.
On the day of the inspection, the positive lead was insu-
lated with insulating material. The positive post and lug
were insulated by their recessed position. An insulating
sleeve was present where the wire entered the lug. The area
where the negative lead attached to the welder was not fully
insulated. A bare conductor was present where the welding
lead entered the lug because an insulating sleeve was not
present. Part of this bare conductor was outside the
vertical plane of the front of the welder. The conditions
at the welder are depicted in Ex. G-7.
B. Arguments of the Parties
The Secretary contends that he established a violation
because the electrical connection on the negative side was
not reinsulated to the same degree of protection as the
remainder of the wire as required by section 77.504. The
Secretary relies on the plain language of the standard and
the deference that is owed his reasonable interpretations of
safety standards.
Falkirk argues that the Secretary's interpretation of the
safety standard is not reasonable. First, it contends that
the application of the standard is limited to splices and
similar electrical connections. It argues that the cited
area was neither a splice nor an electrical connection.
Second, it contends that because the cited area was never
insulated, the standard does not apply. Section 77.504
requires wires to be "reinsulated" where they have been
stripped of insulation to make a splice or similar
connection. Third, Falkirk argues that the Secretary did
not require it to insulate the alleged electrical connection
to abate the citation.
Finally, Falkirk argues that the Secretary failed to provide
the mining community with notice of his interpretation of
the safety standard. It states that the Secretary's witness
could not think of a single MSHA document that supports the
Secretary's interpretation of the standard. Falkirk also
maintains that MSHA did not make any other attempt to
provide notice of his interpre-tation. In addition, it
notes that the Secretary's witness was unaware of any other
citations issued by MSHA under similar con-ditions prior to
September 1995.[1]
C. Analysis of the Issues
I find that the Secretary's interpretation of section 77.504
is reasonable and is supported by the plain language of the
standard. Thus, I do not consider issues of deference.
Mr. Terrance D. Dinkel, an electrical engineer with MSHA's
Denver Safety and Health Technology Center, testified that
the cited area is an electrical connection as that term is
used in the standard. He defined an electrical connection
as a connection of an insulated wire to another insulated
wire or to a piece of electric equipment to allow electric
current to flow through the connection. (Tr. 14-16, 22, 37-
38). Examples of electrical connections include a splice, a
junction box, a plug in an elec-tric outlet, and an
insulated wire attached to a terminal of a light switch.
The safety standard states on its face that it applies to
"all electrical connections." The term "electrical
connection" is not so complicated that it necessarily
requires the Secretary to provide written policy guidance to
mine operators. An elec-trical connection, as applicable
here, is simply a connection between an insulated wire and a
piece of electric equipment which allows current to flow
either from the wire to the equipment or from the equipment
to the wire. An electrical connection need not be a splice
between two wires. The connection must include at least one
insulated wire to be covered by the standard, how-ever.
Connections between uninsulated wires or between an
uninsulated wire and a piece of electric equipment are not
required to be "reinsulated" at the point where they are
connected. (Tr. 15).
The connection between the welder and a welding lead is
clearly an electrical connection. (Tr. 62-63). The welder
generates DC current. This current passes through the
electrical connection to the end of the welding lead. As
explained above, the connection is very similar to the
connection on an automobile or truck battery. The lead is
attached to a post on the welder by means of a lug that is
tightened to the post. The electricity passes through the
post, through the lug, and into the lead. The lead is an
insulated wire. Thus, I find that the cited connec-tion is
an electrical connection in insulated wire as that phrase is
used in the standard.
The cited standard requires wires to be reinsulated at elec-
trical connections. Falkirk maintains that because the area
where the leads connect to the welder (the "terminals") had
never been insulated, the standard cannot apply. How can
you reinsu-late something that was never insulated in the
first place? It is clear that the posts and the lugs on the
welder were never insulated in the sense of an insulating
material being applied to them. It is not clear whether the
bare conductor at the negative post was ever insulated. Mr.
Dinkel testified that there are two basic ways to insulate
connections under section 77.504. First, insulating
material can be placed around the connection. (Tr. 23-25,
52-54). Second, the connection can be insulated by isola-
tion. Id. For example, the connection can be placed in a
junction box or an air gap can be created by recessing the
connection. Id.
Mr. Dinkel testified that, at the time the citation was
issued, the posts and part of the lugs were insulated by
iso-lation. (Tr. 27-31). These parts of the connection
were recessed from the vertical plane of the front of the
welder.
He testified that although someone could deliberately come
in contact with the posts, they were protected by location
and were therefore insulated. That part of the lug on the
positive side that protruded outside of the vertical plane
of the welder was protected by an insulating sleeve. Part
of the lug on the nega-tive side also protruded outside the
vertical plane of the welder, but this area had not been
reinsulated with an insulating sleeve. Id. The sleeve was
either missing from the negative welder lead or a lead
without such a sleeve had been installed. Dinkel testified
that it was this lug and the bare wire entering the lug that
was not reinsulated as required by the standard.
Thus, according to Mr, Dinkel, Falkirk was not required to
"reinsulate" those areas of the terminals that were recessed
because they were already insulated by location. (Tr. 58).
Or, to put it another way, Falkirk actually reinsulated
these areas of the terminals because they were recessed
behind the vertical plane of the welder. Dinkel testified
that Falkirk was only required to reinsulate the lug on the
negative side where the insulating sleeve was not present.
I credit Mr. Dinkel's tes-timony in this regard. Id.
Falkirk also argues that the Secretary did not require it to
insulate the terminals to abate the citation. Falkirk
abated the citation by installing a rubber flap in front of
the terminals. I find that Falkirk reinsulated the
terminals when it abated the citation. Mr. Dinkel's broad
definition of insulation would include the rubber guard that
Falkirk installed. The guard pro-vided physical separation
and the guard was made of an insulating material.
Finally, Falkirk contends that the Secretary failed to pro-
vide any notice to the mining community of its requirement
that terminals on welders are electrical connections that
must be reinsulated. As stated above, I have determined
that the Secre-tary's interpretation of section 77.504 is
supported by the plain language of the standard.
Ordinarily, when the plain language of safety standard
supports a violation, the Secretary is not required to show
that he provided additional notice of the requirements of
the standard. Nevertheless, the language of the standard is
"simple and brief in order to be broadly adaptable to myriad
circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497
(November 1981); Alabama By-Products Corp., 4 FMSHRC 2128,
2130 (December 1982). Such broad standards must afford
reasonable notice of what is required or proscribed. U.S.
Steel Corp., 5 FMSHRC 3, 4 (January 1983). In "order to
afford adequate notice and pass constitutional muster, a
mandatory safety standard cannot be `so incomplete, vague,
indefinite or uncertain that [persons] of common
intelligence must necessarily guess at its meaning and
differ as to its application.'" Ideal Cement Co.,
12 FMSHRC 2409, 2416 (November 1990)(citation omitted). A
safety standard must "give the person of ordinary
intelligence a reason-able opportunity to know what is
prohibited, so that he may act accordingly." Lanham Coal
Co., Inc., 13 FMSHRC 1341, 1343 (September 1991)(citation
omitted). In this context, the Commis- sion further
explained:
When faced with a challenge that a
safety standard failed to provide adequate
notice of prohibited or required conduct, the
Commission has applied an objective standard,
i.e., the reasonably prudent person test.
The Commission recently summarized this test
as "whether a reasonably prudent person
familiar with the mining industry and the
protective purposes of the standard would
have recognized the specific prohibition or
requirement of the standard."
Id. (citations omitted).
I find that a reasonably prudent person would have recog-
nized that the terminals on a welder that generates electricity
are electrical connections in insulated wire and that section
77.504 requires that these terminals be insulated to prevent
inadvertent contact with the terminals by persons working in the
area. As stated above, the plain language of the standard states
that "[a]ll electrical connections ... in insulated wire shall be
reinsulated at least to the same degree of protection as the
remainder of the wire." Given the Secretary's broad, common-
sense definition of the term insulation set forth by Mr. Dinkel,
a reasonable prudent person would have recognized that the miss-
ing sleeve on the lug attached to the negative post needed to be
replaced to comply with the safety standard. Additional expla-
nation or interpretation of the standard by the Secretary was not
necessary in this instance.
In addition, a safety booklet published by the American
Welding Society entitled "Safety in Welding and Cutting," makes
clear that the accepted industrial safety practice is to protect
terminals for welding leads from "accidental electrical contact."
(Tr. 19-20, 48-49, 61-62; Ex. G-5). This document is consistent
with the testimony of Mr. Dinkel.
D. Civil Penalty Assessment
Section 110(i) of the Mine Act sets forth six criteria I
must consider in determining the appropriate civil penalty.
Based on this criteria, I assess a civil penalty of $50 for
the violation. Falkirk was issued 9 citations in the 20
months preceding the inspection in this case. (Ex. G-1).
None of the citations were S&S. It appears that the mine
produced 26,000 tons of coal and employed 251 individuals.
Id. I find that the Falkirk Mine is a small to medium sized
operation. The violation was promptly abated in good faith.
I find that the violation was not serious or S&S. Only a
small area of the electrical connection was exposed. In
addi-tion, the area that was exposed would generally be the
ground for the welder and would not pose a safety hazard.
(Tr. 59). A hazard would be presented only if negative
welding was being performed with the welder. In such an
instance, the voltage between the negative terminal and the
earth would be approxi-mately 75 volts. (Tr. 55). There is
no evidence that negative welding ever occurs at the mine.
(Tr. 64).[2]
I find that Falkirk's negligence was low. There is no
evidence that the mine's employees were inattentive to
safety in general or believed that the condition of the
welder presented a safety hazard. As stated above, there is
no showing that the cited condition presented a serious
hazard to employees.
II. ORDER
Accordingly, Citation No. 4058725 is AFFIRMED and Falkirk
Mining Company is ORDERED TO PAY the Secretary of Labor the
sum of $50.00 within 40 days of the date of this decision.
Richard W. Manning
Administrative Law Judge
Distribution:
Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Andrew S. Good, Esq., NORTH AMERICAN COAL CORP., 14785 Preston Road, Suite
1100, Dallas, TX 75240-7891 (Certified Mail)
RWM
**FOOTNOTES**
[1]: Falkirk raised other issues in a motion for summary
decision. I ruled on these issues in an order denying Falkirk's
motion. Falkirk Mining Co., 18 FMSHRC 1521 (August 1996). At
the time I issued that order, genuine issues of material fact had
not been resolved. Accordingly, any findings and conclusions
contained in that order that are inconsistent with this decision
are hereby superseded.
To establish a violation of a safety standard, the Secretary is
not required to prove that the violation contributed to a safety
hazard. Asarco Inc. v. FMSHRC, 868 F.2d 1195, 1197 (10th Cir.
1989); Allied Products Co., 666 F.2d 890, 892-93 (5th Cir. 1982).
The degree of the hazard is taken into consideration when
assessing a civil penalty.