<DOC>
[DOCID: f:k93-369.wais]

 
PEABODY COAL COMPANY
May 25, 1995
KENT 93-369


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                             May 25, 1995

SECRETARY OF LABOR,               :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :  Docket No. KENT 93-369
                Petitioner        :  A.C. No. 15-14074-03634
                                  :
          v.                      :  Martwick UG Mine
                                  :
PEABODY COAL COMPANY,             :
                Respondent        :

                        DECISION AFTER REMAND

Before:  Judge Amchan

Procedural History

     On April 26, 1995, the Commission vacated my decision,
which held that two citations issued to Respondent were
significant and substantial ("S&S").  It remanded this case
for application of Commission precedent, as set forth in
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984)[1].

Citation No. 3417313: the external grounding device on the cathead

     On December 14, 1992, MSHA representative Darold Gamblin
inspected Respondent's underground coal mine.  Upon reaching
the 3 South Panel entries he encountered an electrical
trans-former supplying power to the equipment in the entries
(Joint Exh-1).  Plugged into the transformer was a power cable
coupler, or cathead, that was connected to a cable running
to a belt feeder transfer point (Tr. 11-14).

     The cathead consists of two large metal parts, one of
which is plugged into the other.  There is a female receptacle
mounted on the transformer and a male part to which the cable
is attached.  The external grounding device of the cathead
consists of two wires, one attached to each metal part.  This
grounding device on the cathead observed by Gamblin was
not functional because these wires were not connected (Tr.
25, Exh. 4).  Gamblin therefore issued Respondent Citation
No. 3417313 alleging an "S&S" violation of 30 C.F.R. �
75.701.  This standard provides that:

     Metallic frames, casings, and other enclosures of
     electric equipment that can become "alive" through
     failure of insulation or by contact with energized
     parts shall be grounded by methods approved by an
     authorized representative of the Secretary.

     The cathead also has an internal grounding device which
normally prevents an employee from being shocked or
electrocuted if the cable insulation were to break (Tr. 14-15).
There is no evidence that the internal grounding device
was defective when Gamblin issued the instant citation.
Both Gamblin and Alan Perks, Respondent's chief maintenance
engineer, characterized the external ground as a "back-up"
device (Tr. 72-74, 83).

     As Respondent concedes that the standard was violated, the
only issues before me are whether the violation was S&S and
the assessment of an appropriate civil penalty.  The Commission
test for "S&S," as set forth in Mathies Coal Co., supra, is as
follows:

     In order to establish that a violation of a
     mandatory safety standard is significant and
     substantial under National Gypsum the Secretary
     of Labor must prove: (1) the underlying violation
     of a mandatory safety standard; (2) a discrete
     safety hazard--that is, a measure of danger to
     safety--contributed to by the violation; (3) a
     reasonable likelihood that the hazard contributed
     to will result in an injury; and (4) a reasonable
     likelihood that the injury in question will be of
     a reasonably serious nature.

     The only evidence introduced by the Secretary with regard
to the third step of the Mathies test is the purely
conclusory opinion of Inspector Gamblin that it is
reasonably likely that the cited condition would lead to
injury if the mining process continued (Tr. 17-18, 26).  I
find this insufficient to estab-lish that the cited
violation was "S&S."

     Moreover, I conclude from the testimony of Alan Perks,
Respondent's chief maintenance engineer, that it is not
reasonably likely that failure to connect the two wires of the
external ground will result in injury.  This is so for
two reasons.  First, the normal practice is to turn off the
circuit breaker on the transformer before disconnecting the
cathead (Tr. 88).  Secondly, even if a miner disconnects the
cathead first, the internal grounding mechanism is likely to
shut off the power if the cathead becomes energized (Tr.
83).

     While it is possible for a miner to be electrocuted due to
failure to connect the external ground wires, several things
would have to go wrong for this to happen.  First, a miner
would have to disconnect the cathead before shutting off the
circuit breaker.  Secondly, there would have to be a short
in the electrical cable, and third, the internal grounding
mechanism would have to be defective.  None of these
conditions were shown to have existed at the time of the
instant citation.  Therefore,  I am not persuaded that it is
reasonably likely that they would have all occurred at
Respondent's mine in the continued course
of normal mining operations.  Therefore I affirm the
citation
as a non-S&S violation and assess a $50 civil penalty.

Citation No. 3417315: The Unmarked Cathead

      During his inspection of December 14, 1992, Gamblin
noticed two catheads affixing cables from continuous mining
machines to a transformer.  One cathead was marked to
indicate the machine to which its cable was attached, the
other was not so marked (Tr. 36, 42).  Inspector Gamblin
issued Respondent a citation alleging an "S&S" violation
of 30 C.F.R. � 75.601.  This standard provides:


*FOOTNOTES**

     [1]:The parties have advised the undersigned that they will
rely on the record and briefs filed prior to the issuance of
he Commission's decision.
     ... Disconnecting devices used to disconnect power from
trailing cables shall be plainly marked and identified and
such devices shall be equipped or designed in such a manner
that it can be determined by visual observation that the power
is disconnected.

     Gamblin believes it is reasonably likely that a miner would
work on a continuous mining machine which he or she mistakenly
thought was de-energized due to the lack of identification
markings on the one cathead (Tr. 40, 50, 56, 60-63).  Respondent
contends that injury was unlikely for several reasons.

     First of all, a miner could determine which cathead went to
which continuous mining machine by process of elimination--
since one cathead was properly marked (Tr. 52).  Secondly,
one of the catheads observed by Gamblin was significantly
cleaner than the other.  Respondent had two continuous
miners in the section because it was in the process of
replacing one with the other, which had been recently
rebuilt (Tr. 89).  The cathead belonging to the rebuilt
machine was much cleaner than the other cathead (Tr. 106-
07).  Respondent argues that it would be obvious that the
cleaner cathead belonged to the rebuilt miner.

     Further, Respondent argues, the normal practice for an
employee when disconnecting a cathead is to follow the
continuous miner's cable back to the transformer to insure
that he or she disconnects the right one (Tr. 90).
Moreover, Peabody's company policy is that an employee
performing work on a continuous mining machine must
disconnect and lock out the power to the machine himself or
herself (Tr. 109).


     As with the prior citation, the only issue before me is
whether the violation was S&S.  The Commission, in the
instant case, indicated that United States Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984) stands for the proposition
that while S&S determinations are not limited to conditions
existing at the time of the citation, they should not take
into consider-ation conditions at other mines or over
extended periods of time.

     In the instant case, the older continuous miner would only
be in the section with the rebuilt miner for two or three
days until Peabody was satisfied that the rebuilt machine
was working properly (Tr. 92, 103).  Given this fact, and
the other factors mentioned by Respondent, I conclude that
an injury was not reasonably likely to occur due to the lack
of markings on the one cathead.  I therefore affirm the
citation as a non-S&S violation and assess a $50 civil penalty.

                                ORDER

     Citation Nos. 3417313 and 3417315 are affirmed as non-S&S
violations.  Considering the statutory factors enumerated in
section 110(i) of the Act, I assess a $50 civil penalty for
each of the violations.  These penalties shall be paid within
30 days of this decision.


                                 Arthur J. Amchan
                                 Administrative Law Judge

Distribution:

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002

Richard Jones Rd., Suite B-201, Nashville, TN 37215-2862
(Certified Mail)

Carl B. Boyd, Jr., Esq., Meyer, Hutchinson, Haynes & Boyd,
120 N. Ingram St., Suite A, Henderson, KY 42420 (Certified
Mail)

/lh