FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9964 / FAX: 202-434-9949

October 8, 2009

DECISION

Appearances:  Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Petitioner;

Guy W. Hensley, Esq., Jackson Kelly, PLLC, Brookwood, Alabama, for the Respondent.

Before:            Judge Weisberger

Statement of the Case

            These cases are before me based upon Petitions for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), alleging violations by Jim Walter Resources, Inc. (“Jim Walter”) of various mandatory safety standards set forth in Title 30, Code of Federal Regulations.

            Pursuant to notice, the cases were duly scheduled and heard in Birmingham, Alabama on June 10, 2009. Subsequent to the hearing, each party filed a brief. Neither party filed a reply brief.

I.         Docket No. SE 2007-271

            A.        Citation No. 7691427

                        1.         Findings of Fact

            On July 16, 2007, MSHA Inspector Harry Wilcox inspected Jim Walter’s No. 7 Mine, an underground coal mine. In the course of his inspection, he examined the alternate escapeway located in the intake air entry. According to Wilcox, two parallel stoppings, constructed from solid concrete blocks, extended from the floor to the ceiling and laterally across the entry from the right rib, looking inby, to the middle of the entry. A regulator was located within the concrete blocks, and extended from the middle of the entry to the left rib. According to Wilcox, the small size of the regulator opening as well as pressure created by the high volume of intake air flowing through the regulator towards the face prevented passage through the regulator. An airlock that extended from the right rib to the middle of the entry allowed passage in either direction through the approximately six foot gap between the two stoppings.

            A lifeline was provided in the entry for miners to use to escape in the event of diminished visibility caused by smoke resulting from a fire or explosion. The lifeline, which extended from the roof, was secured to the inby and outby sides of the airlock, but did not continue inside the airlock between the stoppings. Thus, when escaping outby in an emergency with diminished visibility, miners could escape in an outby direction by following the lifeline up to the inby airlock door. However, at that point it would be necessary to open the airlock door, and traverse the six foot distance inside the airlock to the outby door without the benefit of a lifeline. After opening the outby airlock door and re-entering the entry, it would be necessary to locate the lifeline in order to continue outby to escape.

            Wilcox issued a citation alleging a violation of 30 C.F.R. § 75.380(d)(7), which was modified two days later to allege a violation of 30 C.F.R. § 75.380(d)(7)(i), which requires, as pertinent, that each escapeway should be provided with a “continuous, ... lifeline ... that shall be- (i) Installed and maintained throughout the entire length of each escapeway ... ;” (emphasis added).

                        2.         Discussion

            Jim Walter did not adduce any evidence contrary to the facts set forth above, nor did it impeach the inspector’s testimony in these regards.

            It appears to be Jim Walter’s position that the lifeline was in compliance with Section 75.380(d)(7)(i). Jim Walter relies on the testimony of Ricky Parker, a safety supervisor, that miners travel the escapeway every ninety days, and that no one has had any problem negotiating the lifelines through the airlock.

            In addition, Jim Walter relies on an MSHA computer-generated document, RX-1, which the inspector identified as “Q and As” (Tr. 43.), which provides that “If doors cannot be avoided, the lifeline should be secured to the stopping on either side of the door.” Jim Walter argues that it was in compliance with the cited standard, as the lifeline was secured to the stopping on either side of the door. However, there is not any indication that RX-1 was promulgated pursuant to notice and comment.

            Further, RX-1 is not consistent with the plain meaning of the regulation at issue, which requires that lifelines be, inter alia, “continuous.” Webster’s Third New International Dictionary (2002 ed.) (“Webster’s”) defines continuous as “characterized by uninterrupted extension in space: stretching on without break or interruption.” Inasmuch as the lifeline at issue did not continue through the airlock and there was a six foot break or interruption in the lifeline, I find that it was not “continuous” within the common meaning of that term. Accordingly, I find that the lifeline was not in compliance with Section 75.380(d)(7)(i).

                        3.         Penalty

            Parker testified, in essence, that Jim Walter secured the lifeline to stoppings on either side of the airlock, in reliance on the “Q and As” (RX-1), “that was given out to us for compliance guidelines.” (Tr. 52) I observed his demeanor, and find his testimony credible in this regard. I find that the level of Jim Walter’s negligence was low. Taking into account all of the factors set forth in Section 110(i) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C § 820(i) (”Mine Act”), and placing most weight upon the low level of Jim Walter’s negligence, I find that a penalty of $20.00 is appropriate for this violation.

            B.        Citation No. 7691428

                        1.          Finding of Fact and Discussion

            On January 23, 2007, Wilcox inspected the main fan area on the surface of the Jim Walter No. 7 Mine. A temporary vibration sensor cable was in use to monitor the vibration of the fan shaft to ensure that it would not cause the shaft to fail. The cable entered the metal compartment for the sensor control through a door. It did not enter through any fitting; the door was closed against the cable.

            Wilcox issued Citation No. 7691428, alleging a violation of 30 C.F.R. § 77.505, which requires as follows: “Cables shall enter metal frames of motors, splice boxes, and electric compartments only through proper fittings. When insulated wires, other than cables, pass through metal frames, the holes shall be substantially bushed with insulated bushings.”

            Jim Walter urges that the citation be dismissed, and cites Wilcox’s testimony that the cable had been placed inside the metal compartment only on a temporary basis, that the current on the cable “would be milliamps,” and that he did not find any cable damage. (Tr. 75.)

Jim Walter argues, in essence, that under these circumstances, Section 77.505 does not apply.

            However, the mandate of Section 77.505 is clear and unequivocal in requiring that cables enter metal frames of electrical components “only through proper fittings.” The language of Section 77.505 does not provide for any exceptions. Thus, to rule in favor of Jim Walter would result in the amendment of Section 77.505, which is manifestly beyond the powers of a Commission Judge.

                        2.         Conclusion

            I find that the record establishes that the cable entered an electric compartment through its door and not “through proper fittings.” Thus, I find that it has been established that Jim Walter violated Section 77.505.

            Considering all the factors set forth in Section 110(i) of the Mine Act, I find that a penalty of $60.00 is appropriate for this violation.

            C.        Citation No. 7691429

            The parties stipulated that a violation of 30 C.F.R. § 77.504 occured as alleged in Citation No. 7691429, and that $60.00 is an appropriate penalty for this citation. Secretary’s Brief and Argument, at 1, and Jim Walter’s Brief, at 2.

II.       Docket No. SE 2007-264

            A.        Citation No. 7690414

                        1.         Findings of Fact

            On September 29, 2006, MSHA inspector Russell Weekly inspected Jim Walter’s truck shop. He indicated that four overhead lights in the left corner of the ceiling on the east side of the shop were burnt out. According to Weekly, “[t]he area that these lights would have illuminated was not very adequately lit, even at the time of day the citation was issued, which was 0800.” (Tr. 154.)

            Weekly opined that a person walking to and from supply cabinets located on the east side of the shop could trip over an approximately 3/4 of an inch thick steel plate that was located under the cabinets. He asserted that persons working the evening or night shifts “could very possibly” trip over the steel plate since the area would be dark without the benefit of sunlight. (Tr. 162.)

            Weekly issued a citation alleging a violation of 30 C.F.R. § 77.207, which provides that “[i]llumination sufficient to provide safe working conditions shall be provided in and on all surface structures, ... and working areas.”

            According to Parker, the floor of the structure at issue was sixty to seventy feet long, and thirty to forty feet wide. He indicated that a garage door ten to twelve feet wide and approximately fifteen feet high was located on the east side of the shop and was normally kept open.

            Parker testified that opaque fiberglass skylights extended around the perimeter of the walls of the building. The skylights, which were approximately six feet high, were located “from halfway to three quarters of the [50 foot high] wall.” (Tr. 235.)

            According to Parker, there were four lights in the ceiling, in addition to the four cited by Weekly. Also, there were a total of seven wall lights located halfway up the walls, and distributed among the four walls. Parker testified that there were two cap lights in the shop, and “we have” tripod and hanging lights although he did not see them in the shop. (Tr. 244.)

            Parker, who was the inspector during the latter’s inspection, testified that “We didn’t have a problem seeing anything that we needed to see at the time.” (Tr. 245.) He opined that the illumination was sufficient.

                        2.         Discussion

            I take cognizance of the inspector’s opinion that the illumination in the shop was not sufficient to provide safe working conditions due to the absence of four overhead lights. However, the weight to be accorded this opinion is diluted by considering the presence of opaque sky lights covering a significant portion of the walls surrounding the building. Further, I note the presence of additional ceiling and wall lights, and the availability of cap lights. I, thus, find the record does not establish that, during the daylight shift, illumination was insufficient.

            Further, since the inspection was only during daylight, it is mere conjecture that the illumination would not have been sufficient during the evening and night shifts. There was not any evidence adduced regarding the amount of illumination shed by all the operative lights located on the walls and ceiling. Moreover, I note the presence of additional portable lights, as well as the availability of cap lights. Also, I note that Weekly did not indicate the spatial relationship between the inoperative overhead lights, the working areas, and the location of the supply cabinets where the potential tripping hazard of a steel plate was located.

            For all these reasons, I find that the Secretary has failed to adduce sufficient evidence to establish, by a preponderance of evidence, that due to the lack of four ceiling lights, the illumination remaining was not sufficient to provide safe working conditions. For these reasons, I find that it has not been established that Jim Walter violated Section 77.207. Accordingly, Citation No. 7690414 is Dismissed.

            B.        Citation 7690415

                        1.         The Secretary’s Case

            Weekly testified that there were not any weatherproof covers over two 110-volt wall outlets that were located inside the shop. He indicated that a Jim Walter employee told him that the area is sprayed down and washed out daily. He opined that if water was inadvertently sprayed into the outlets in question, which were located four feet off the floor, the person doing the spraying could suffer an electrical shock due to a short circuit. Weekly issued a citation alleging a violation of 30 C.F.R. § 77.516.

            Section 77.516 provides, as pertinent, that “all wiring and electrical equipment installed after June 30, 1971, shall meet the requirements of the national electric code in effect at the time of the installation.” In support of the violation, the Secretary proffered a 1968 edition of the National Electric Code (“GX-10"). Jim Walter objected to the admissibility of GX-10, and after listening to arguments, the objection was sustained.

            After the Secretary rested, Jim Walter made a motion for summary decision which was granted. The decision granting Jim Walter’s motion is set forth below, with the exception of non–substantive changes, and the addition of matters that were inadvertently omitted.

                        2.         Bench Decision

            The Secretary has the burden of establishing a violation, which entails establishing all elements of a violation. Section 75.516 requires an operator to comply with the requirements of the National Electric Code “in effect at the time of the installation.”

            The Secretary has not presented any evidence with regard to the time of the installation, either of the structure that is at issue or specifically with regard to the wiring and installation of the outlets at issue. Thus, the Secretary has failed to establish which edition of the code was in effect at the time of the installation.

            The Secretary proferred a copy of five pages from a 1968 edition of the National Electric Code (GX-10). Jim Walter objected to its admissibility. After each party argued the merits of the objection, the objection was sustained. As such, GX-10 is not part of the record.