.
CONTRACTORS SAND & GRAVEL SUPPLY, INCORPORATED
March 25, 1996
WEST 93-462-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
March 25, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 93-462-M
Petitioner : A.C. No. 04-04679-05510
:
v. : Montague Plant
:
CONTRACTORS SAND & GRAVEL :
SUPPLY, INCORPORATED, :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-409-M
Petitioner : A.C. No. 04-04679-05514 A
:
v. : Montague Plant
:
ERIC SCHOONMAKER, owner & agent :
CONTRACTORS SAND & GRAVEL :
SUPPLY, INC., :
Respondent :
SUMMARY DECISION
Before: Judge Cetti
I
Background
Contractor's Sand and Gravel, Incorporated, operates two
small portable sand and gravel surface mining operations located
near Yreka, California. The Scott River Plant has two employees
and produces about 10,000 to 15,000 tons annually. The Montague
Plant has two employees and produces about 10,000 to 15,000 tons
annually.
Eric Schoonmaker, the company's general manager, oversees
both operations. Mr. Schoonmaker's responsibilities include, for
example, managing the business, directing sales, marketing and
customer relations, organizing production, coordinating equipment
maintenance and repair, and making sure that the operations are
safe. He is also the company's primary liaison with regulating
authorities such as MSHA. He asserts the plant has been in
operation for many years and passed all MSHA's electrical inspec-
tions until the grounding citation in question was issued on
March 10, 1993, by Inspector Ann (Johnson) Frederick.
II
Mr. Schoonmaker is the 110(c) agent charged in Docket No.
WEST 94-409-M with the knowing violation of 30 C.F.R. � 56.1205
at the Montague Plant. That safety regulation 30 C.F.R.
� 56.1205 reads as follows:
All metal enclosing or encasing electrical
circuits shall be grounded or provided with
equivalent protection. This requirement does
not apply to battery-operated equipment.
The single citation at issue in both of the above-captioned
dockets charges both the operator and the manager Eric Schoon-
maker with the unwarrantable failure to comply with the above-
quoted safety standard. The citation reads as follows:
The frame of the crusher was being used as
the grounding conductor. The ground solid
strand copper wire ran from a rod (found +18"
below the surface near the van used as a con-
trol electrical installation) under the van
through an underground pipe and connected
directly to the frame of the portable crusher
operation. Another jumper (solid copper
wire) was found from the upper head pulley
frame to the metal of the chute where the
crushed rock transferred to the stacker con-
veyor belt. The wires from both motors found
on these belts was SO P123 MSHA 14/3 stamped.
No other visible grounds were found at the
motors. Effective equipment ground conduc-
tors have not been installed as evidenced.
The electrical grounding tests performed at
the Montague plant and stated to on Sept. 15,
192 (1992) state that the grounding had been
found to conform to applicable code. Frame
grounding has been forbidden for over fifteen
years. This is an unwarrantable failure by
operator to comply with the standards.
Respondents do not dispute that the paths to ground for the
stacker motor and crusher delivery motor passed through the frame
of the crusher. Respondents do, however, dispute that such a
grounding system violates the regulatory requirement of 30 C.F.R.
� 56.12025.
Respondents' counsel asserts that Petitioner has not even
established a prima facie case that the two motors in question
were not grounded. Respondent contends that at the time the
citations were issued, the two motors in question were effec-
tively grounded. MSHA performed no test and has no other defin-
itive evidence to show that the motors, at the time the citations
were issued, were not effectively grounded or were, in any way,
in violation of the plain, clear provisions of the cited safety
standard.
Both parties agree that there is no dispute as to any mate-
rial fact and that the matter is ripe for summary decision on the
single legal issue of whether Respondent's reliance on the crush-
er and stacker frames to serve as the path to ground for the
electric current violates the provisions of 30 C.F.R. � 56.12025.
The parties have cross-moved for summary decision on this single
legal issue.
Both parties agree that although the grounding issue is only
one issue, among many, in the nine consolidated cases concerning
33 citations, Citation No. 3911909 is the most significant of the
citations and has generated, by far, the largest of the proposed
penalties in these cases. Although the parties here seek summary
decision on only one of many issues in the consolidated cases,
the parties agree that the resolution of the grounding issue will
allow the remaining citations in the consolidated cases to be re-
solved by amicable settlement without need for a hearing.
STIPULATIONS
In March 1996, the parties entered into the record the stip-
ulation that the record for summary decision on the
grounding is-sue consists of the following:
1. Citation No. 3911909.
2. All pleadings filed with the presiding judge, including
but not limited to, motions, oppositions, and prehearing
state-
ments, to show the respective litigation positions of and
repre-
sentations made by the parties.
3. Respondent's Request for Admissions and MSHA's Responses
to Respondent's Request for Admissions; Respondent's
Interroga-tories and MSHA's Responses to Respondent's
Interrogatories, Plaintiff's (Petitioner's)
Interrogatories and Respondent's Responses to Petitioner's
Interrogatories.
4. The affidavit of Eric Schoonmaker.
5. The declarations of Paul Price and Gordon Vincent.
6. The deposition transcripts of Paul Price, Ann
(Johnson) Frederick, Eric Schoonmaker and Frank Casci.
7. Article 250 of the 1993 National Electrical Code (NEC),
to show the NEC's definitions of "grounded" and "grounded,
effec-
tively."
8. Article 250 of the 1993 National Electrical Code (NEC),
to show the electrical grounding requirements of the NEC.
9. Order No. 3913901, issued subsequent to Citation No.
3913895 and under contest in Docket No. WEST 93-141, to show
that Order No. 3913901 was terminated.
10. Photographs A-1, A-2, A-3 and A-4 to show the
equipment used at the Montague Plant.
11. August 3, 1995, letter from Paul Price to Mark Ode,
to show that MSHA requested an interpretation of Article 250
of the 1993 National Electrical Code from the National Fire
Protection Association.
12. August 14, 1995, letter from Mark Ode to Paul
Price, to show the National Fire Protection Association's
unofficial inter-
pretation of Article 250 of the 1993 National Electrical
Code as it applies to the hypothetical scenario set out in
Mr. Price's August 3, 1995, letter.
The February 29, 1996, letter transmitting the above stipu-
lations also states "the stipulated record contains a few
items that have not been previously cited by the parties and
attached to prior motions or pleadings. These items are
being included to make the record complete for appeal
purposes."
Both parties in their pleadings and arguments have stated
their respective cases very well. Upon careful review of
the record, I am persuaded that the undisputed material
facts in this case do not establish a violation of 30 C.F.R.
� 56.12025.
The cited standard 30 C.F.R. � 56.12025 plainly and clearly
requires that "metal enclosing ... electrical circuits shall
be grounded." The regulation is specific and not broadly
worded. 30 C.F.R. � 56.12025 is a "performance standard."
It does not specify or require that the operator achieve an
effective ground in a specific manner.
I find that Respondent complied with the requirement of
the cited standard by intentionally grounding the stacker
conveyor and crusher discharge conveyor motors by using the
stacker and crusher frames as conductors in carrying ground
fault current to earth. Part 56 which sets forth the
mandatory safety standards for surface nonmetal mines, such
as we have here, clearly pro-
vides that "electrical grounding means to connect with the
ground to make earth part of the circuit." 30 C.F.R. �
56.2. The com-pany's resistivity tests conducted on
September 15, 1992, pursu-ant to 30 C.F.R. � 56.12028
indicated that there was an effective path to ground from
both of the motors. Thus, the motors in question were
connected with the ground to make the earth part of the
circuit. There is no contrary evidence.
The Secretary should not be permitted through interpretation
to expand the regulation beyond its plain meaning. The
Secre-tary's purported longtime interpretation of the
regulation to prohibit per se frame grounding constitutes an
impermissible expansion of the plain meaning of the
standard. It constitutes an impermissible avoidance of the
rulemaking requirements of section 101 of the Mine Act.
Since the Secretary purports to impose additional
requirements and prohibitions without proper rulemaking, it
lacks the "force and effect of law". Western-Fuels Utah,
Inc., 11 FMSHRC 278, 286-87 (March, 1989); see also Asarco
Inc., 14 FMSHRC 829, 835 (1992).
If the Secretary believes frame grounding should be prohi-
bited, the Secretary should initiate appropriate rulemaking
to achieve its goal rather than attempting to do so by its
interpretation of the regulation beyond its plain meaning.
(See Mathies Coal Company, 5 FMSHRC 300, 303 (March 1983).
With respect to the application of the reasonable, prudent
person test, I find that a reasonable, prudent person
familiar with the mining industry would have recognized that
the two motors, which were connected to earth through a
series of metal frame and wire connections, were "grounded"
and were, thus, in compliance with the requirement of the
cited regulation. I base this on the definition of
grounding at 30 C.F.R. � 56.2 which specifically states that
"electrical grounding means to connect to the ground to make
the earth part of the circuit". 30 C.F.R. � 56.2.
In this connection, I also find it noteworthy that in the
National Electrical Code, "grounded" is defined as
"connected to earth or to some conducting body that serves
in place of earth." NEC, Article 100 (definitions) (1993)
and that "grounded effec-
tively" is defined as "Intentionally connected to earth
through a ground connection or connections of sufficiently
low impedance and having sufficient current carrying
capacity to prevent the buildup of voltages that may result
in undue hazards to connected equipment or to persons. NEC,
Article 100 (definitions) (1993).
Also noteworthy in the application of the reasonable prudent
person test is the fact the Secretary's purportedly
longstanding interpretation has never been published in
MSHA's Program Policy Manual and furthermore, MSHA's
purported interpretation is contrary to two unappealed,
well-reasoned decisions of two Commission Judges
who I believe to be reasonable, prudent persons
familiar with the mining industry. See Mulzer Crush Stone
Company, 3 FMSHRC 1238 (May 1981) in which Judge Laurenson
rejected MSHA's contention that the frame was not a source
of grounding. See also McCormick Sand Corporation, 2 FMSHRC
21, 24 in which Judge Michels rejected MSHA's contentions
and held that 30 C.F.R. � 56.12025 "fairly read, requires
only a "ground" or its equivalent. It does not mandate a
particular ground such as that mentioned in the citation
..." I have not been able to find any Commission authority
contrary to these two unappealed Administrative Law Judge
decisions.
I conclude, primarily on the basis of the plain, clear lan-
guage of the cited regulation, that Citation No. 3911909
should be vacated. I find nothing in the transcript and
declaration of Paul Price, the transcript of Ann (Johnson)
Frederick and the other material and arguments on which MSHA
relies that persuades me to a contrary conclusion. Such
testimony and arguments would be more appropriate in a
section 101 rulemaking proceeding.
ORDER
Docket No. WEST 93-462-M
Citation No. 3911909 is VACATED and its related $7,000.00
proposed penalty is set aside. I retain jurisdiction of the
two remaining citations in the docket.
Docket No. WEST 94-409-M
Citation No. 3911909 is VACATED; its related $6,000.00
proposed penalty is set aside. Docket No. WEST 94-409-M is
DISMISSED.
August F. Cetti
Administrative Law Judge
Distribution:
Steven R. DeSmith, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
71 Stevenson Street, Suite 1110,
San Francisco, CA 94105
C. Gregory Ruffennach, Esq.,
RUFFENNACH LAW OFFICES,
1675 Broadway, Suite 1800,
Denver, CO 80202
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