FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
Office of
Administrative Law Judges
Office: (303)844-5266/
Fax (303) 844-5268
July 2, 2012
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PARAMONT COAL COMPANY VIRGINIA,LLC, Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Respondent. |
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CONTEST PROCEEDING |
ORDER DENYING PARAMONT’S MOTION FOR
SUMMARY DECISION
This
case is before me on a notice of contest and request for expedited hearing
filed by Paramont Coal Company Virginia, LLC (“Paramont”) pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977 (the “Act”). 30 U.S.C. § 801 et seq. The case involves one
104(a) citation issued to Paramont on March 22, 2012 for an alleged violation
of 30 C.F.R. § 75.512.
On
May 25, 2012, Paramont filed a Motion for Summary Decision (“Motion”) pursuant
to Commission Procedural Rule 67, 29 C.F.R.§ 2700.67. Also on May 25, 2012, the Secretary filed a
Response to Contestant’s Motion for Summary Decision (“Response”) arguing that
the matter was not appropriate for summary decision because facts remain in
dispute. Subsequently, Paramont filed a Reply to the Secretary’s Response
(“Reply”) and the Secretary filed further documentation on June 15, 2012.
Following a conference call held on June 11, 2012, Paramont and the Secretary
stipulated to facts that primarily address the allegations made by the
inspector in his citation and the Secretary submitted further documents in
support of her case..
I. BACKGROUND
On
March 22, 2012, Inspector Dennis Shortt with the Department of Labor’s Mine
Safety and Health Administration, (“MSHA”) issued Citation No. 8190034 under
Section 104 (a) of the Act, alleging a violation of 30 C.F.R. § 75.512. The
citation arose from a nonfatal electrical accident that occurred when a miner
was moving a trailing cable for a shuttle car and he received an electrical
shock. The miner was knocked unconscious and was taken to the hospital where he
was treated for burns to his hand. The miner missed one full day of work. The Condition
or Practice section of the citation states the following:
The section
electrical equipment is not being properly maintained. During an electrical
accident investigation conducted on March 22, 2012, six citations were issued
for trailing cables that were inadequately protected and insulated. One of the
inadequately
protected and
insulated cables (#43 Shuttle Car, 600 volts) caused a miner to receive an
electrical shock and an arc burn to the palm of his hand. The miner lost [consciousness]
because of the shock and was transported to the hospital to receive treatment.
This citation
provides notice that once-a-week electrical examination is not adequate to
ensure the section electrical equipment is properly maintained. This mine cuts
rock that seems to fracture and break creating thin, sharp and pointy edges
that damages the cable. Additional examinations have to be conducted to
minimize the reoccurrence of this type of accident.
Per the
authorization of the District Manager, this mine is now required to do two
electrical examinations each calendar week on all section equipment with
trailing cables. These examinations shall be recorded in an electrical
examination book required by 75.512.
Inspector
Shortt determined that an injury or illness was reasonably likely to occur and
that such injury could result in death, that the violation was significant and
substantial (“S&S”), that one person was affected, and that the violation
was a result of moderate negligence on the part of the operator.
Paramont
filed a motion for summary decision asserting that the language found near the end
of the Condition or Practice section of the citation that puts the mine on
notice that it must inspect all trailing cables twice each week is invalid.
Paramont seeks to have the citation vacated.
The Secretary responded to Paramont by asserting that summary judgment
is not appropriate in this circumstance because the Secretary expects that
further evidence will be needed as to the fact of the violation, the meaning of
“at least weekly,” and on the S&S finding. A penalty has not yet been
assessed. For the reasons that follow, I deny the motion for summary decision.
II.
APPROPRIATENESS OF SUMMARY DECISION
The Commission’s Procedural Rule 67
sets forth the grounds for granting summary decision as follows:
A motion for
summary decision shall be granted only if the entire record, including the
pleadings, depositions, answer to interrogatories, admissions, and affidavits,
shows:
(1)
That
there is no genuine issue as to any material fact; and
(2)
That
the moving party is entitled to summary decision as a matter of law
The
purpose of summary judgment is not to resolve disputed issues of fact, but to
assess whether there are any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477
The
issues raised by Paramont extend only to the language in the citation that
refers to the requirement to conduct an electrical examination of the trailing
cables twice each week. Paramont
suggests, as a part of its argument, that if the mine conducts one inspection
each week, it is in compliance with the regulation. Since the Mine Act requires “frequent”
examination, which is interpreted to mean, “at least once per week,” the mine
argues that the District Manager has no authority to require a twice weekly
exam.
The
parties filed a number of documents and pleadings, including a stipulation of
facts not in dispute. This analysis is limited to the issue raised by Paramont,
i.e., that the language provided at the end of the body of the citation
purports to put the mine on notice that it must conduct two weekly examinations
and that such language is invalid, thereby requiring the citation to be
vacated.
III. BRIEF
SUMMARY OF THE ARGUMENTS
A. Paramont’s Motion for Summary
Decision
Paramont
asserts that there is no dispute of fact and that it is entitled to summary
decision. Paramont contends that the Secretary exceeded her authority by
demanding that Paramont conduct a second electrical examination per week, in
addition to the one required by 30 C.F.R. § 75.512. Paramont Mot. 1. Paramont
argues that summary decision as a matter of law is appropriate pursuant to 29
C.F.R. § 2700.67(b), because there is no genuine issue of material fact.
Paramont
submits that the inspector, per the authorization of the District Manager,
acted outside the scope of his authority when he ordered Paramont to conduct
two electrical examinations each week.
B. Secretary of Labor’s Response
The
Secretary argues that there are factual issues that must be resolved, so
Paramont is not entitled to summary decision. Sec’y Resp. 4. The Secretary
takes the position that the issue of requiring more than a once a week
inspection must be done on a case-by-case basis and is heavily dependent on the
facts of each case.
C. Paramont’s Reply
Although
the Secretary alleges that there are factual issues that need to be resolved,
the Secretary offers nothing to support this assertion. Paramont Rep. 1.
Paramont contends that the issue is not whether the facts in the case justify
the action taken, but rather whether the Secretary can legally take such
action. Id. Consequently, Paramont
argues that because the Secretary has no discretion to require a second
examination under any circumstance, regardless of the facts, there is no need
for a hearing and summary decision is appropriate. Id. at 2.
D. Secretary’s Supplemental Response
Following a conference call with the parties, the
Secretary agreed and stipulated to the facts surrounding the violation as
described in the inspector’s citation, supra. The submission of the
Secretary includes a declaration by Jason Lane, the electrical supervisor for
MSHA coal district 5. The stipulations, together with Lane’s declaration,
explain the basis for the violation described in the citation, as well as the
designation of the violation as S&S. Lane’s declaration explains that the
mine was put on notice to conduct more than one weekly inspection but Lane does
not address the precise language requiring two weekly examinations. The
Secretary argues that, given the circumstances surrounding this violation, the
mine must conduct more than one weekly examination in order to comply with 30
C.F.R. § 75.512.
E.
Stipulations
The parties submitted the following stipulations:
1. This proceeding involves one 104(a)
citation, No. 8190034, that was issued by the Federal Mine Safety and Health
Administration (“MSHA”) at Paramont Coal Company’s Deep Mine #25.
2. Paramont Coal Company was an
"operator" as defined in §3(d) of the Federal Mine Safety and Health
Act of 1977, as amended (hereinafter "the Mine Act"), 30 U.S.C.
§803(d), at the Deep Mine #25 on the date that the citation involved in this
proceeding was issued.
3. Operations of Paramont Coal Company at
the Deep Mine #25 are subject to the Mine Act.
4. The Federal Mine Safety and Health
Review Commission and the Administrative Law Judge assigned to this matter have
jurisdiction to hear and decide this proceeding pursuant to Sections 105 and
113 of the Act.
5. MSHA Inspector Dennis Short was acting
in his official capacity and as an authorized representative of the Secretary
of Labor when the citation at issue in this proceeding was issued.
6. A true copy of Citation No. 8190034 at
issue in this proceeding was served on Paramont Coal Company or its agent as
required by the Mine Act.
7. Government Exhibit 1 is an authentic
copy of Citation No. 8190034, with all modifications, and may be admitted into
the record for the purpose of establishing its issuance and not for the purpose
of establishing the accuracy of any statements asserted therein.
8. The Deep Mine #25 operates two
continuous miner super sections, the 001/002 and 003/004 sections.
9. Both sections operate two continuous
miners.
10. The 001/002 section operates various
pieces of mobile electrical equipment, including; continuous mining machines,
roof bolters and shuttle cars.
11. The electrical equipment being operated
on the 001/002 section receives power from a section power center via trailing
cables.
12. On March 22, 2012, a nonfatal electrical
shock accident occurred at the Deep mine #25 when David Mondrage, who was
working as a Section Foreman, handled the trailing cable for a shuttle car and
received an electrical shock.
13. Mr. Mondrage suffered burn injuries to
his hand.
14. Mr. Mondrage was taken to the hospital
for treatment and was released.
15. The accident occurred on a Thursday. Mr.
Mondrage missed work on Friday, March 23, due to the accident and returned to
work on Monday, March 26, 2012.
16. Government Exhibit 2 is a photograph of a
section of the type of trailing cable being utilized on the 001/002 section and
may be admitted into the record.
17. Government Exhibit 3 is a photograph
showing the damaged section of the trailing cable believed to be the source of
the electrical current that resulted in the electrical shock received by Mr.
Mondrage and may be admitted into the record.
18. Following the above accident, MSHA
conducted an investigation that included examination of all trailing cables on
the 001/002 section.
19. MSHA’s investigation found that the shock
was caused by a pin hole opening in the insulation of the cable that the victim
handled.
20. The cable was carrying 600 volts.
21. Six of the eight trailing cables being
used on the 001/002 section has damaged places to the cable insulation.
22. Government Exhibit Nos. 4 through 9 are
accurate copies of citations that were issued by MSHA citing each of the
inadequately maintained trailing cables and may be admitted into the record.
23. Following its investigation of the accident
and examination of all trailing cables on the section, MSHA issued Citation No.
8190034 alleging a violation of 30 CFR §75.512.
24. Government Exhibit 10, 19 pages, is an
accurate copy of reports of weekly examinations of electric equipment for the 001/002
section for the period from March 22 through May 31, 2012.
25. Government Exhibit 11, 19 pages, is an
accurate copy of reports of weekly examinations of electric equipment for the
003/004 section for the period from March 22 through May 31, 2012.
IV. DISCUSSION
Inspector
Shortt issued a citation to Paramont for a violation of Section 75.512 which requires that “[a]ll electric equipment shall be frequently examined,
tested, and properly maintained by a qualified person to assure safe operating
conditions.” Section 75.512-2
defines the term “frequently” to mean that the examinations and tests required
by Section 75.512 “shall be made at least weekly.”
The
citation was issued as a result of an electrical accident in which a miner was
handling a 600 volt cable with a pin hole opening in the insulation and outer
jacket. Stip.19, Lane Decl. ¶¶ 11 and 12.
The miner was knocked unconscious, suffered burns to the hand and was
hospitalized as a result. The mine had been conducting weekly examinations of
the trailing cables, as well as other electrical equipment, but when the cables
were examined by MSHA following the accident, six of the eight cables were
damaged. Stip. 21, Lane Decl.¶ 20. As a result, MSHA determined that it would
put the mine on notice that, in the future, more than one weekly examination
was necessary. Lane Decl. ¶ 24.
The
fact of the violation is confirmed by the stipulations submitted by the parties
but Paramont argues that the facts
surrounding the violation are not important. Specifically, it argues that the
Secretary, as a matter of law, is not authorized to require the mine to examine
electrical equipment twice per week. I first
note that the language Paramont objects to is not a part of the description of
the actual violation. Rather, it is framed as a notice to the operator, based
on the actual violation, that a “once-a-week electrical examination is not
adequate to ensure that the section electrical equipment is properly
maintained.” The final paragraph in the body of the citation sets the frequency
of future examinations at twice per week. I agree with the operator that the
District Manager cannot unilaterally dictate the precise number of examinations
to be conducted by Paramont and that, if Paramont were cited in this particular
case for failing to conduct two inspections, the citation would fail. However,
again, with respect to this particular citation, Paramont was not cited for
failing to conduct two examinations
of equipment and was instead cited for not conducting a sufficient number of
examinations to assure safe operating condition of the trailing cables. There
is no question that the cable that resulted in the injury, and six out of the
eight cables used on the section, were not in safe operating condition. The
trailing cables contained “one or more damaged places” thereby exposing miners
to a shock hazard. Lane Decl. ¶ 20.
Evidently the damage to the cables is caused when the mine cuts into sandstone
rock that breaks into sharp pieces. Lane
Decl. ¶ 22.
The
Secretary argues that Section 75.512-2 must be read to mean that the frequency
of examinations must be sufficient to establish “safe operating condition.” I
agree with the Secretary that the standard has a two-fold requirement and that
it may be necessary in some instances for the mine operator to conduct more
than one examination. The standard requires “frequent” examinations, which
translates into “at least once weekly.” The term is not ambiguous. It is clear
that the mine must, at a minimum,
conduct an examination once each week. If the standard had been intended to
require only one examination per week,
common sense dictates that it would have been clearly constructed to indicate
such. Instead the standard, 75.512-2, uses the qualifying language “at least,”
which is has the same meaning as “at a minimum” Therefore, if the minimum is
not enough to assure safe
operating conditions,
it is up to the mine operator to conduct further examinations of electrical
equipment.
Paramont
argues that, under the plain terms of the standard, the mine is required to
conduct one electrical exam every week. The Secretary agrees that, a minimum of
one exam is required, but further argues that, in some instances, more than one
is required. Paramont reasons that one exam alone always meets the requirements
of the standard and argues that “under the plain terms of the relevant
standards, an operator complies with § 75.512 . . . as long as it conducts at
least one electrical exam every week.” Paramont Mot. 7. The mine’s reasoning
fails to consider the obvious intention of the standard, as well as the meaning
of “at least” once per week. An operator does not necessarily comply with the
standard by conducting an examination once a week, as is evidenced by the facts
in this case. Clearly, given the accident that occurred in this instance, at least more than one examination was
needed to assure safe operating conditions.
Accordingly, in this case, the one examination alone did not meet the
requirements of the standard.
Certainly
the stipulation of fact, taken with the inspector’s declaration, supports the
fact of the violation and the significant and substantial nature of the
violation. However, the Secretary did not seek summary decision on that issue
but limited the case to the issues raised by Paramont. The issue presented by
Paramont, is whether the language near the bottom of the citation, requiring
two examinations in the future, is unacceptable, thereby requiring that the
citation be vacated. While I find that the Secretary may not cite the operator
for its failure to conduct specifically two examinations, she may cite the
operator for failing to conduct enough examinations if the examinations that
were conducted did not assure safe operating conditions. The language following the violation in the citation
is not a part of the alleged violation and its inclusion is not a basis to
vacate the citation.
I
find that the violation of section 75.512 is accurately cited as set forth in
the citation. The mine is required by
the standard to conduct a minimum of one inspection per week, but if that is
not sufficient to maintain the equipment safely, more examinations are
required. The mine may need to make two electrical examinations each week or it
may require two each day. Each citation or order issued under this standard
must be evaluated based on the conditions present at the time. In any event, it
is up to the mine operator to conduct sufficient inspections to insure that the
equipment is maintained in the proper condition. A failure to assure safe operating
conditions can be, and in this case was, cited by the Secretary.
V. ORDER
Having
considered all of the documents, briefs, exhibits and stipulations, I find that
the citation was properly issued and that the language near the end of the
violation relating to requiring two inspections per week does not merit
vacating the citation. Therefore, Paramont’s motion for summary decision is DENIED.
While the Secretary has not moved for summary decision, it seems that, given
the documents submitted, the only matter that remains is the issue of the
appropriate penalty for the violation. The parties are ORDERED to contact the court within ten days to schedule a
conference call to discuss how the case will proceed from this point.
/s/
Margaret A. Miller
Margaret
A. Miller
Administrative
Law Judge
Distribution:
Daniel
Wolff, Crowell & Moring, LLP, 1001 Pennsylvania Ave., Washington, DC
20004-2595
Robert
Wilson, Office of the Solicitor, U.S. Dept. of Labor, 1100 Wilson Blvd, 22nd
Floor West, Arlington, VA 22209