FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

Telephone No.: (202) 434-9950

Fax No.: (202) 434-9949

March 14, 2012

DECISION

Appearances:  Willow E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville, Tennessee, for the Petitioner

Joshua E. Schultz, Esq., Law Offices of Adele L. Abrams, P.C., Beltsville, Maryland, for the Respondent

Before:            Judge Koutras

STATEMENT OF THE CASE

This civil penalty proceeding pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802, et seq. (2000), hereinafter the “Mine Act,” concern two Section 104(a) non-significant and substantial (S&S), citations served on the respondent on December 8 and 9, 2010, for alleged violations of mandatory safety standards 30 C.F.R. §§ 56.14100(b) and 56.12005.

A hearing was held on November 9, 2011, in Winchester, Virginia, and the parties appeared and participated fully therein. The parties waived the filing of briefs, and presented their respective arguments on the hearing record. I have considered their arguments in the course of this decision.

The Alleged Violations

            Citation number 8578147 is a Section 104(a) non-S&S violation. It was issued on December 8, 2010, and alleges a violation of 30 C.F.R. § 56.14100(b). It states as follows verbatim (Exhibit G-l):

When checked there were no brake lights working on the 992 C Cat front end loader. The loader was on the ready line next to the shop to be used when needed. The loader was checked by company employee before inspection and no brake lights was not noted. This condition put at risk a rear end collision with no warning of slowing or stopping which could result in lost work time injury if a collision occurred. S/N 42X00800

Citation number 8578148 is a Section 104(a) non-S&S violation. It was issued on December 9, 2010, and alleges a violation of 30 C.F.R. § 56.12005. It states as follows verbatim (Exhibit G-l-4):

At the repair shop was found a company pickup truck that was parked on an 120 volt electrical cord that was plugged in to the heater on the truck engine. This condition put at risk employees of a shock hazard that may be using the cord later and the cord damaged by the sharp rocks the truck was parked on.

MSHA Inspector David Nichols testified regarding his mining experience, which included maintenance and repair of mining machinery, ownership of a welding business, and working with electricity and fiber optic communications. He has served as an inspector for nine years and received training at the Beckley Mine Academy. He visited the mine on December 7, 2010, in preparation for his inspection the next day and he reviewed the mine files and prepared his regular inspection information form and discussed it with plant manager, Rick Hoffman. He issued no citations that day and returned the next day to conduct his inspection (Tr. 27-31).

Mr. Nichols confirmed that he issued Citation No. 8578147, after finding that both of the 992c front-end loader brake lights were not working (Tr. 32, 36; Ex. G-l, and photographic exhibit G-3). The machine was parked in the “ready line” area where equipment is parked and available for use as needed, and where spare parts may be obtained for equipment repairs (Tr. 32-34).

Mr. Nichols stated that based on his past mining experience, equipment on the ready line would have been looked over and made ready for service and to insure that everything is functional, and all the safety defects are corrected. This would be done in order to insure the availability of dependable equipment that could quickly be returned to production (Tr. 35).

Mr. Nichols concluded that the operator had an opportunity to look at the loader before placing it on the ready line because he knew that he would inspect the equipment at that location and had started the equipment because it was a cold evening. The equipment operator informed him that it was preshifted “to make sure everything was good” (Tr. 36-37).

Mr. Nichols stated that after observing the inoperative brake lights, the equipment operator informed him that he did not check them because he did not have a second person available to assist him in observing the lights. Mr. Nichols confirmed that during his close-out conference with plant manager, Rick Hoffman, he informed him that if the loader were needed it would have been inspected and the brake lights problem would have been discovered (Tr. 38-40).

Mr. Nichols believed the inoperable brake lights presented the possibility of a collision with equipment that is slowing and stopping. However, he determined that the gravity level was “unlikely” because the loader would be located in the pit and basically driving into the pit and leaving in the evening, and would necessarily be following other equipment (Tr. 41).

Mr. Nichols believed that any hazardous rear-end collision could possibly result in head or neck whip lash injuries. However, he considered the fact that mine management has a good seat belt policy that is well enforced, and that any injury would result in sore muscles and two or three lost work days (Tr. 42). He further concluded that the violation was the result of moderate negligence mitigated by the fact that it has a very good preshift inspection policy (Tr. 44).

In response to bench questions, Mr. Nichols stated that the machine back-up alarms and seat belts were in working order, and no one would be on foot in the pit area where it would be operated. He confirmed that he extended the abatement time in order to allow the respondent to order and receive a required light switch and that the respondent has a good reputation for terminating citations as soon as possible (Tr. 47-49).

On cross-examination, Inspector Nichols confirmed that there is no requirement for an equipment ready line. However, any equipment in that area must be preshifted before it is taken off the ready line and placed into service, and it is not considered to be into service until it is needed.. He did not know how long a piece of equipment can remain on the ready line (Tr. 62-63).

Mr. Nichols stated that the loader was not in operation at the time of his inspection, and he did not know whether it was intended to be placed in service before he inspected it. However, the engine was running and the shop employee informed him that he had “checked it out”. Mr. Nichols did not ask the employee if he conducted a preshift inspection, and the loader was taken out of service until the brake lights were repaired (Tr. 64-67).

Mr. Nichols believed that the difference between a walk-around check of a vehicle and a full MSHA required preshift is basically terminology, and would depend on the individual performing this task. He stated he was informed that the loader was ready for him to inspect, and not that it was ready to be put in service. He did not believe there should be a difference because “our standards only specify one type of an inspection of equipment, whether it’s been put in service or whether I’m there to inspect it, either one” (Tr. 69). He confirmed that there is no preshift inspection required before a vehicle is inspected by an inspector. He confirmed that there was no evidence that the loader was operated by anyone with defective brake lights and he did not know how long they were defective (Tr. 70-71).

Jesus Vega, Respondent’s equipment operator, confirmed that he was working at the mine on December 8, 2010, and his supervisor, Johnny Taylor, instructed him to check out the Euclid 96 and 97, and the 992c Dozer. He confirmed that he started the Dozer but was not instructed to perform a preshift examination and he did not perform one because that was the responsibility of the operator of that piece of equipment and he did not operate it that day (Tr. 88-91).

Mr. Vega stated that he did not check the Cat 992 loader brakes because he cannot check them by himself and needed help and he did not conduct a full preshift examination because he did not operate the machine. He confirmed that when he performs a full preshift inspection he includes the brake lights because the driver is present to observe whether the brake lights are operable (Tr. 92-93). He stated that he is trained to perform a full equipment preshift inspection examination when he is the operator. He explained the procedures he follows to conduct the examination, included inspecting the equipment brake system. He confirmed that the full examination takes one hour (Tr. 94-96”).

Mr. Vega stated that on the day of the inspection he started the cited loader, checked the engine oil, transmission, hydraulics, and the antifreeze, and turned the lights on to insure they were operative, but he did not conduct a full preshift examination because he did not operate the loader that day. He was not planning to use it, was not instructed to use it, and did not move it. He did not fill out a preshift inspection form which is normal if a full preshift examination is done. He confirmed that he started four vehicles which took one-half hour, and that a full preshift takes one hour (Tr. 96-99). Mr. Vega stated that his supervisor instructed him to start the equipment because Inspector Nichols was coming. He turned on the loader lights but did not check the brake lights because he had no one to help him (Tr. 99-101).

Johnny Taylor, head quarry pit foreman for 15 to 18 years, testified that there has never been an area called a “ready line,” but there is an “available” area. He stated that the area characterized by MSHA as a “ready line’’ is an area where equipment that is not in use is parked together with equipment that is taken for use. The equipment that is not used on any day remains parked (Tr. 103-104).

Mr. Taylor stated that the parked equipment is not ready for immediate use until it is preshifted and is ready for use. A preshift is required if the equipment is scheduled for use, regardless of the operational time (Tr. 105). He confirmed that he was present during the inspection. He stated that the loader is a spare and may be used if needed, but only after it is preshifted and it is infrequently used. He believed that it was not used during the week of December 8 because it had not been inspected (Tr. 107).

Mr. Taylor stated that Mr. Rick Hoffman, his supervisor, instructed him to start the parked equipment which was not to be used, including the loader, and four of five pieces of pit equipment for the inspector to look at. He then instructed Mr. Jesus Vega and employee Juan Maple to start the equipment and check it out because of the cool weather, but he did not advise them that they were to operate the loader or to preshift it because it was not intended to be used (Tr. 109).

Mr. Taylor confirmed that he trained equipment operator Jesus Vega to conduct full preshift examinations that take 45 minutes to perform, as well as the preparation of the required check list forms confirming the examinations. The training took place during personal safety meetings and video presentations with Mr. Taylor’s crews, including Mr. Vega (Tr. 110-119; Exhibit R-2 through R-5). He stated that in order to fully preshift the loader it would have to be taken to the pit to check the parking brake because of the road grade where it would be operating. That preshift would have included checking the brake lights (Tr. 111).

 Inspector Nichols confirmed that he issued Citation No. 8578148, after observing a pickup truck parked on a 120 volt extension cord used to heat the truck heater while parked, just outside the shop on the gravel parking lot, and he photographed the truck (Tr. 50; Exs. G-1-4, G-3-2). He explained that an extension cord is generally hung up over the outside truck mirror pursuant to company policy as a reminder to drivers not to drive over a cable and jerk it loose. When not in use, the extension cord is normally kept outside of the shop (Tr. 52).

Mr. Nichols stated that the cited Section 30 C.F.R. § 56.12005, language requiring a power conductor to be “properly bridged or protected” is intended to protect the cable insulation from being crushed or cut if it were run over. Any damage to the cable insulation would expose anyone picking it up to an electrical shock hazard. He explained that the standard requires a structure, such as one using 2 x 4 or 2 x 6 wood placed on either side of the cable to protect it temporarily if someone were to run over it (Tr. 52-55).

Mr. Nichols determined the gravity level as “unlikely” in that the cited occurrence was rare and the respondent has a policy in place to prevent it. He believed that the truck operator failed to notice that he had backed over the top of the cable that was under the rear tire approximately twenty feet where anyone could pick up the brightly colored yellow cord and drape it over the truck rear-view mirror. He stated the truck was used to transport tables that were used for his safety meeting that morning (Tr. 55-56).

Mr. Nichols stated that the hazard presented by running over the extension cord included damage to the inside conductors, and ground, and outer insulation cuts caused by the gravel that could later expose someone to a 120 volt electrical shock hazard (Tr. 57).

Mr. Nichols described the hazards associated with the breaking of the outer extension cord insulation, including a fatal shock from the 120 volt cord, as well as damage to the inside cord conductors that are not visible and could do damage to the ground circuit which could result in an electrical shock if anyone touched the cord (Tr. 57-59).

Mr. Nichols stated that the cited cord was tested to insure that the inside and outside conductors were in good shape through a visual check of the cord exterior and a continuity test by an electrician on the interior of the cord. He stated that he based his “moderate” negligence finding on the respondent’s cord hanging policy, the fact that the cord was not damaged, and the annual continuity tests conducted by the operator on all of its electrical cords (Tr. 60).

On cross-examination, Inspector Nichols believed the phrase “to protect a power conductor” means insulated or isolated from damage. He stated that bridging or hanging up a cord, as well as putting it in a piece of conduit and burying it in the gravel are examples of protection (Tr. 72, 74).

Mr. Nichols stated that he found no evidence of any damage to the cord, and he confirmed that his gravity finding of “unlikely” was based on the fact that the cord was a new heavy duty and heavy insulated cord with no cuts and was tested and found to be “OK” (Tr. 75, Exhibit G-2-2).

Mr. Nichols concluded that the cord was heavy due to its size and gauge. He confirmed that the power conductors are inside of the cord and that the heavy insulation helps to protect the conductors “to certain extents, except when you run over it”, and that it “probably helped” protect the conductors in this case.

Mr. Nichols attributed the lack of damage to the cord to the tact that it was the first time it was run over, and he did not take it out of service because it was tested and checked and no damage was found. He then terminated the citation and the cord was in compliance and allowed to be used (Tr. 77).

On re-direct examination, Mr. Nichols stated that the size of the truck parked on the cited cord can damage a heavy duty extension cord, and if any danger is not visible from the outside, it can still be damaged, and it must be tested to determine that damage has occurred (Tr. 81).

Discussion and Findings and Conclusions

The cited mandatory safety standard 30 C.F.R. § 56.14100(b), with respect to Citation No. 8578147, states as follows:

Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.

The petitioner asserts that the evidence establishes that the loader brake lights were inoperative and not functional when the inspector observed them and the loader was examined before the inspector viewed it. The petitioner pointed out that the employee who inspected the loader did not see the brake lights because he was not provided another employee to assist him, but that the loader was nonetheless preshifted (Tr. 86).

The petitioner argues that although a violation may not be supportable if it were impossible to discover the brake lights defect, in the instant case the respondent instructed its employees to start the loader in order to insure that it is in order in the event it was needed and put into use (Tr. 127).

Petitioner asserts that the respondent started the equipment in order to make it ready to be inspected, and since the transmission fluid, hydraulics, all lights with the exception of the brake lights, were checked, it was not impossible to check them after the loader was started and checked (Tr. 128).

Petitioner concludes that it was unlikely that the loader would have been preshifted and discovered the defect before taking it from where it was parked and using it in the pits, where it would be hazardous to operate without brake lights. Petitioner dismisses the respondent’s assertions that the loader was not being preshifted, but was just “looked at”, and did not require a full preshift examination (Tr. 130).

The respondent asserts that the petitioner has not shown how long the defects existed, that it was operated with any defect, that a full preshift inspection was made to discover the defect, and that the defect would not be discovered and timely corrected during a preshift inspection before the loader was next put in operation (Tr. 85).

The respondent argues that it has a system in place designed to stay in compliance with Section 56.14100(b), by preshifting all vehicles before they are put in service to insure that defects are corrected in a timely manner. Respondent maintains that vehicles are routinely looked at when inspectors are on site through a cursory walk-around of the vehicle, and that the loader was started and warmed up for the inspector to look at. However, the full preshift examination pursuant to the respondent’s established policy to insure that defects are detected was not performed on the loader. If it were to be put in operation, as it is normally done when a preshift is performed, a full preshift would have been performed (Tr. 133).

Respondent further argues there was no loader hazard exposure or any indication that it was ever driven with defective brake lights. Further, there is no showing how long the hazard existed, or that it was ever a hazard to persons or that the hazard would not be corrected under the respondent’s preshift policy which the petitioner acknowledges is strong (Tr. 133-134).

The respondent cited several decisions decided by Commission judges concerning the interpretation and application of Section 56.4100(b). Petitioner’s counsel confirmed that she was aware of the cases and discussed them with the respondent’s counsel. She believed that cases concerned situations where there was a true impossibility that the operator could have discovered the defect (Tr. 126).

The respondent’s counsel stated that this was not true, and that the cited cases involved vehicles that were driving around the mine, and if the brake lights were defective they would have been noticed by other miners and would have actively created a hazard. In the instant case, the loader was never driven and if it were put into operation, it would have been corrected in a timely manner before it created hazards to persons (Tr. 134).

Contrary to the petitioner’s argument that the loader was preshifted before the inspector found the inoperative brake lights, the respondent’s credible testimony and evidence reflects that although the loader, as well as other vehicles, were started and warmed up because pit foreman Taylor’s supervisor Rick Hoffman was aware that the inspector was on site and would probably inspect them, I cannot conclude that loader operator Jesus Vega’s rather brief preparatory work of checking loader fluids and lights constituted a full preshift examination that normally would take one hour. Consequently, I find there is no credible evidence that the loader was preshifted pursuant to the respondent’s established procedures that are not in dispute.

Regardless of the characterization of the area where the cited loaders, as well as other vehicles, were parked as a “ready line”, the inspector agreed that there was no requirement for such a designation, and he conceded that any parked equipment had to be preshifted before it was moved and placed in service. In this regard, I conclude and find that Section 56.12005 does not require that all parked equipment not in service must be maintained and ready for use at all times. On the facts of this case, I conclude and find that the inspector’s preemptive and premature issuance of the violation in absence of any evidence that a full regular preshift examination was performed on the loader, which would have put the respondent on notice that a defect had to be taken care of, did not afford the respondent with a reasonable opportunity to perform a preshift, discover the defect, and timely repair it.

I find no evidence to support the petitioner’s assertion that it was unlikely that the loader would have been preshifted and the defect discovered. I credit the testimony of Mr. Taylor that the loader was a spare that was not used during the week of the inspection, is used infrequently, and that if it were needed to be placed in service, it would be preshifted. I also credit his testimony regarding a rather extensive training program for its equipment operators. That program was conceded to be “a very good preshift inspection policy” by the inspector (Tr. 44).

I further find that the cited loader back-up alarms and seat belts were in working order, and that it was not in operation when the inspector inspected it. Further the inspector did not know whether the loader was intended to be placed in service before he inspected it, and he did not ask the operator if he had preshifted the loader, and the operator did not inform him that it was ready to be put in service (Tr. 69).

I also take note of the fact that when the inspector initially observed the loader while it was parked with the engine running, he concluded that the operator had “pre-inspected it”, and simply asked him if he had “checked everything out” (Tr. 65-66). I find credible and persuasive operator Vega’s testimony that he had not planned to put the cited loader in operation, that he was not instructed to put it in service, and that he did not prepare a preshift inspection report that he would normally submit after preshifting a vehicle.

I find the inspector’s belief that the difference between a “walk-around check” of a vehicle and a full MSHA required preshift is “basically terminology”, that depends on the person performing the task to be rather contradictory (Tr. 67-68). On the facts of this case, it would appear to me that the loader operator and the inspector differed as to what had taken place with regard to the vehicle inspection.

Based on all of the aforementioned circumstances, and after consideration of all of the arguments advanced by the parties, I conclude and find that the petitioner has not established by a preponderance of the evidence that the respondent did not correct the cited defect in a timely manner within the meaning of Section 56.14100(b). Accordingly, the citation IS VACATED, and the proposed civil penalty assessment IS DENIED.

The cited safety standard 30 C.F.R. § 56.12005, with respect to Citation No. 8578148, states as follows:

Mobile equipment shall not run over power conductors, nor shall loads be dragged over power conductors, unless the conductors are properly bridged or protected.

In support of this alleged violation, the petitioner cites the photograph of the truck parked on top of the regular heavy-duty electrical cord, and points out that this is a non-S&S citation with moderate negligence (Tr. 86; Exhibit G-2-3).

The petitioner argues that in the event the extension cord were run over, any damage would not be detected unless the vehicle was stopped to visually examine any damage to the outside of the cord. In the event of any undetected interior cord damage, anyone subsequently using it would be exposed to an electrical 120 volt shock hazard, particularly if the cord were exposed to wet and cold weather while it were in use. The petitioner rejects any suggestion that the cited extension cord was properly protected and concludes that it could be run over many times and used continually (Tr. 131-132).

The respondent argues that the inspector agreed that a power conductor is protected when it is insulated, and that the cited extension cord was a heavy-duty cord with heavy insulation. Under the circumstances, the respondent concludes that the cord was protected in accordance with the requirements of Section 56.12005, which states that a power conductor must be bridged or protected (emphasis added) (Tr. 135).

After careful consideration of the arguments presented by the parties, I conclude and find that the petitioner’s position is supportable and correct. Although the regulatory word “protected” invites the defense advanced by the respondent, that any self-insulated heavy duty power conductor inherently provides adequate protection against hazardous cable damages, it is REJECTED.

I take note of the inspector’s testimony that the size and gauge of a power cord provides some measure of protection, but only if the cord is not run over. In the instant case, the inspector considered the absence of any cord damage, after it was further examined and tested, in his determination that the violation was not significant and substantial.

I find credible the inspector’s testimony that given the size of the truck that was parked on the cord, it could have damaged the cord. Further, conceding the fact that the cord was a heavy duty insulated cord with no visible indications of any external damage, and passed a continuity test, I find credible the inspector’s belief that any inside cord damages to the conductors and grounding circuits, which are not visible and readily detectable, would expose anyone handling the cord to an electrical shock hazard.

I conclude and find that running or parking over a power conductor cord presents a realistic potential for interior cord damage that would not be immediately visibly detected, and that any subsequent and continued use of the cord, without correcting the defect, by persons who may not be aware that the cord was run over, would expose them to potential shock hazards.

I further conclude and find that in the context of any normal working environment with the presence of mobile equipment, it would be unlikely that an equipment operator who may have inadvertently run over a power cord, or dragged a load over it, would immediately stop the vehicle or discontinue his work to perform more than a cursory visual examination of the cord. Indeed, in the instant case, the truck was clearly parked over the cord in full view of anyone passing by, with no corrective action until the inspector found it

I credit and adopt the inspector’s interpretation that Section 56.12005 requires some independent physical protection other then the cord itself, and his examples of the use of temporary bridging, conduit, or hanging or suspending a power cord off the ground, as a practical and reasonable means of compliance. On the facts of this case, the lack of protection, other than the cord, constituted a violation of Section 56.12005. Accordingly, the violation IS AFFIRMED. The proposed civil penalty assessment that I find reasonable, is likewise AFFIRMED.

History of Prior Violations

Exhibit A to the petition for assessment reflects the absence of any repeat violations of Section 56.12005, during the prior inspection period of 17-18 days and 50 inspection hours. Exhibit G-5, the petitioner’s violation assessment history report from June 27, 2007, to October 2, 2009, reflects no prior violations of Section 56.12005. All of the 19 assessed violations were Section 104(a) citations, 16 of which were non-S&S violations with penalties of $100 each, and the remaining three were S&S violations with penalties of less than $500. Under the circumstances, I cannot conclude that the respondent’s history of violations is such as to warrant any increase in the civil penalty assessed for the violation that has been affirmed.

Good Faith Compliance

The record reflects that the violation was rapidly abated in good faith in 15 minutes after the truck was moved and the extension cord was inspected and found undamaged.

Gravity

Based on the inspector’s non-S&S determination that any injury was unlikely, which I adopt and affirm, I conclude and find that the violation was minor.

Negligence

The inspector’s moderate negligence finding was based on the respondent’s cord hanging policy, its annual cord continuity tests, and the fact that the cord was not damaged. The inspector’s moderate negligence finding IS AFFIRMED.

Size of Business and Effect of Civil Penalty Assessment on the Respondent’s Ability to Remain in Business

In the absence of any evidence to the contrary, I conclude and find that the respondent is a small mine operator and that the penalty assessed in this matter will not adversely affect its ability to remain in business.

In view of the foregoing findings and conclusions, IT IS ORDERED that Section 104(a) non-S&S Citation No. 8578147, December 8, 2010, for a violation of 30 C.F.R. § 56.14100(b), IS VACATED, and the proposed civil penalty assessment IS DENIED.

In view of the foregoing findings and conclusions, IT IS ORDERED that Section 104(a) non-S&S Citation No. 8578148, December 2, 2010, for a violation of 30 C.F.R. § 56.12005, IS AFFIRMED.

The respondent IS ORDERED to pay a civil penalty in the amount of $100, for the violation. Payment shall be made within thirty (30) days of the date of this decision, and remitted by check made payable to “U.S. Department of Labor/MSHA”, P.O. Box 790390, St. Louis, MO 63179-0390. Upon receipt of payment, this matter is DISMISSED.

                                                                        /s/ George A. Koutras

                                                                        George A. Koutras

Administrative Law Judge

Distribution:

Willow Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219

Joshua Schultz, Esq., Law Offices of Adele L. Abrams, PC, 4740 Corridor Place, Suite D, Beltsville, MD 20705

/kss