.
WESTERN FUELS-UTAH, INC.
May 15, 1995
WEST 94-391-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 15, 1995
WESTERN FUELS-UTAH, INC., : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 94-391-R
v. : Citation 4059968; 4/21/94
:
SECRETARY OF LABOR, : Deserado Mine
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Mine I.D. 05-03505
Respondent :
DECISION
Appearances: Karl F. Anuta, Esq., Boulder, Colorado, for
Contestant; Margaret A. Miller, Esq., Office of
the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Respondent.
Before: Judge Manning
This case is before me on a notice of contest filed by
Western Fuels-Utah, Inc. ("Western Fuels") against the
Secretary of Labor and his Mine Safety and Health
Administration ("MSHA"), pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 815.
Western Fuels contests the issuance of Citation No. 4059968 to
it at its Deserado Mine on April 21, 1994. For the reasons
set forth below, I affirm the citation.
A hearing was held in this case on January 5, 1995, in
Grand Junction, Colorado. The parties presented testimony
and documentary evidence, and filed post-hearing briefs.
I. FINDINGS OF FACT
The Deserado Mine is an underground coal mine in Rio
Blanco County, Colorado. It mines coal using the longwall
method and transports coal out of the longwall section on a
conveyor belt. On April 21, 1994, MSHA Inspector Phillip
Gibson issued a section 104(a) citation to Western Fuels
because "additional insulation was not provided for the
communication circuit in the belt conveyor entry of the
9th East longwall section at the point where the circuit
passed over the 995 V AC power conductor." (Ex. M-1). He
alleged a violation of 30 C.F.R. � 75.516-2(c). In the
citation, Inspector Gibson stated that an injury was
unlikely, that if an injury did occur it would not result
in any lost work days, and that the violation was not of a
significant and substantial nature. He determined that
the mine operator's negligence was moderate. The citation
was abated by moving the communication cable and a nearby
telephone.
Section 75.516-2 provides, in pertinent part:
Communication wires and cables; installation;
insulation; support.
(a) All communication wires shall be supported on
insulated hangers or insulated J-hooks.
(b) All communication cables shall be insulated ...,
and shall either be supported on insulated or uninsulated
hangers or J-hooks, ... or buried, or otherwise protected
against mechanical damage....
(c) All communication wires and cables installed in
track entries shall, except when a communication cable is
buried in accordance with paragraph (b) of this section,
be installed on the side of the entry opposite to trolley
wires and trolley feeder wires. Additional insulation
shall be provided for communication circuits at points
where they pass over or under any power conductor.
(d) For purposes of this section, communication cable
means two or more insulated conductors covered by an
additional abrasion-resistant covering.
Western Fuels does not deny that the phone cable passed over
the power cable and that additional insulation was not provided
at that location. It contends, however, that this condition did
not violate the safety standard.
Tracks and trolley wires are not used in the Deserado Mine.
Between 70 and 80 permissible telephones are present underground,
which are used as the primary means of communication in the mine.
(Tr. 112-13; Ex. W-2). These phones are connected through and
powered by 24-volt DC audio communication cables, which contain
four shielded conductors and are protected by an outer jacket.
(Tr. 109-10; Ex. W-7). The phone cables are installed on J hooks
attached to the roof in the belt entry of the longwall section.
Western Fuels does not dispute that its phone cables are a
"communication circuit," as that term is used in the standard.
Electricity for the longwall section is supplied through power
cables, which carry about 995 volts AC. (Tr. 106-09; Ex. W-6).[1]
The power cables contain three power conductors, two ground
conductors and a conductor for the ground fault monitor. (Tr. 108).
The cable has a dielectric rating of 2,000 volts and is protected
by an outer jacket. (Tr. 106-08; Ex. W-6). The power cables
are installed in the belt entry on a monorail. The monorail
consists of a long I-shaped bar suspended from the mine roof.
(Ex. W-4). The power cables are suspended from cable carriers
that are located along this bar. (Ex. W-5). The cable carriers
are on wheels so that they may be moved along the monorail, as
necessary. Two power cables and several compressed air lines
are supported by the cable carriers.
Inspector Gibson testified that the communication cable
touched the power cable where they crossed. (Tr. 18). Robert
Daniels, a safety inspector and trainer with Western Fuels,
testified that the cables were about three inches apart. (Tr.
100). Neither party, however, contends that this conflict is
significant in the resolution of this case. Both cables were
well insulated and were protected against mechanical damage by
outer jackets. Neither cable was damaged or worn at the cited
location. The fuses and circuit breakers protecting the com-
munication and power circuits were adequate. Mobile equipment
was not used in the entry where the citation was written.
Finally, MSHA would have permitted Western Fuels to abate the
citation by covering either cable with a single wrap of elec-
trical tape at the crossover point.
It is not uncommon for cables to become cracked or broken
in underground coal mines. (Tr. 126-27). MSHA believes that
additional insulation is necessary where communication circuits
pass over or under power cables because communication circuits
lead directly to telephones used by miners on a regular basis.
These telephones are an important safety tool for miners. If
the communication circuit becomes energized by a power cable,
anyone using the phone could be injured, a methane explosion
could occur, and the phone system could be knocked out.[2]
The Secretary's witnesses acknowledged that, given the condition
of the cables at the cited location, the chance of the
communication circuit becoming energized by the power cable
was remote. (Tr. 31-32, 34, 62-64; Ex. W-1 p.7). They stated
that the requirement for additional insulation is to provide
an extra measure of safety for an abnormal situation, in
case "something out of the ordinary were to occur."
(Tr. 62-64).
**FOOTNOTES**
Exhibit W-6 is portable mining cable. The cable installed
to supply power to the longwall is similar, but is a larger 350
MCM cable. (Tr. 107).
Western Fuels has a backup wireless communications system
for use in the event the communication circuit is not
functioning.
II. SUMMARY OF THE PARTIES' ARGUMENTS
A. Western Fuels
Western Fuels makes several arguments in support of its
contention that it did not violate the safety standard.
First, it argues that the provisions of section 75.516.2(c)
are only applicable to track entries. Western Fuels
contends that the two sentences in 75.516-2(c) must be
read together and that the phrase "communication wires and
cables installed in track entries" in the first sentence
of subsection 2(c) is also applicable to the second sentence.
It reasons that the language of the first sentence of the
subsection limits the application of the entire subsection
to track entries, because such entries contain bare trolley
wires. Western Fuels further contends that the language of
the subsection is clear, not ambiguous, and is not subject
to a contrary interpretation by MSHA. Since the
communication cable observed by the inspector was not in a
track entry, the safety standard was inapplicable and,
consequently, there was no violation.
Second, Western Fuels argues that Commission precedent
requires that the MSHA inspector make an objective evaluation
of the conditions observed to determine whether a hazard was
present. In this case, it argues that the inspector failed
to take into consideration the condition of the power and
communication cables, the degree of insulation and physical
protection provided by the cables themselves, the method the
mine used to support the cables, the fact that no vehicles
travel through the area, and other environmental factors.
Western Fuels contends that the citation should be vacated
because the inspector failed to make the requisite objective
evaluation of these conditions.
Finally, Western Fuels contends that MSHA's
interpretation of the standard is nonsensical and defeats
its purpose. It maintains that the purpose of the safety
standard is to protect miners from the potential hazards of
electrical shock or fire in the event communication wires or
cables contact bare trolley wires. It makes sense to require
additional insulation where communication cables cross bare
trolley wires because a trolley wire is not insulated.
Applying the standard to communication cables that are not
in track entries is illogical because power cables and
communication cables are adequately protected by the
insulation and outer jackets provided by the manufacturer.
B. Secretary
The Secretary contends that the second sentence of section
75.516-2(c) was promulgated to deal with communication
wires, wherever they may be located. He maintains that the
second sentence is concerned with communication circuits
crossing "any power conductor," not just trolley wires. The
Secretary points to the fact that the safety standard deals
with the hazards of communication circuits, not with the
hazards of trolley wires or track entries. Thus, the
standard is titled "Communication wires and cables;
installation; insulation; support." The Secretary maintains
that the second sentence of subsection 2(c) is appli-cable
to the conditions cited by the inspector.
The Secretary also contends that the word "additional" in
the standard means what it says: additional insulation must
be provided by the mine operator at the applicable
locations. He argues that the degree of protection provided
by the cable manufacturer and the environmental conditions
at the mine are irrelevant in determining whether there is a
violation of the standard. Thus, the inspector is not
required to make an ob-jective evaluation of the these
conditions.
Finally, the Secretary contends that, to the extent the
standard is deemed to be ambiguous or silent as to the
issues raised by Western Fuels, the Commission should give
the Secre-tary's interpretation deference. The Secretary
maintains that his interpretation is entitled to deference
because it is clearly consistent with the purposes of the
Mine Act.
III. DISCUSSION WITH FURTHER FINDINGS
AND
CONCLUSIONS OF LAW
I find that the language of the safety standard is clear
on its face and that the second sentence is applicable to the
condition cited by Inspector Gibson. Accordingly, I have
not reached the Secretary's deference argument. The safety
standard, 30 C.F.R. � 75.516-2, is directed to hazards
associated with communication wires and cables. One
sentence in the standard specifically directs that
communication wires and cables be installed on the side of
the entry opposite trolley wires. No other sentence in the
standard speaks of track entries or trolley wires. The
sentence in dispute specifically states that its
requirements are applicable where communication circuits
"pass over or under any power conductor." Thus, by its own
terms, the requirements of that sentence are not limited to
areas where communication circuits cross over bare trolley
wires.
Although the placement of the disputed sentence immediately
after the sentence concerning trolley wires is unfortunate,
such placement does not alter the meaning of specific
language of the sentence. I believe that such placement
should not cause undue confusion because of the clarity of
the language. It is not logical to assume that, because the
first sentence in subsection 2(c) addresses the hazards of
communication wires in track entries, the second sentence is
also applicable only to track entries. The title of the
standard is broadly worded and the language in the sentence
in question specifically addresses all power cables, not
just trolley wires. Because the sentence is applicable to
all power cables, it is not logical to limit its scope to
track entries. If a communication circuit passing over an
insulated power cable poses a hazard in a track entry, then
it would also pose a hazard in other entries. Thus, I find
that the second sentence of section 75.516-2(c) is not
limited to communication circuits in track entries.
Western Fuels maintains that Inspector Gibson was
required to consider the conditions present in the mine and
determine objectively whether additional insulation was
required where the communication cable passed over the
power cable. In making this argument, Western Fuels relies
on the Commission's decisions in Homestake Mining Co., 4
FMSHRC 146 (February 1982) and Climax Molybdenum Co., 4
FMSHRC 159 (February 1982). For the reasons discussed
below, I believe that those cases are distinguishable.
In Homestake and Climax, insulated power cables were in
contact with waterlines, telephone lines, and air lines.
The safety standard at issue provided that "powerlines shall
be well separated or insulated from waterlines, telephone
lines, and air lines."[3] MSHA inspectors issued citations
without determining whether the powerlines were "well
separated or insulated" from the waterlines, telephone
lines, and air lines. The inspectors believed that the
standard required operators to provide additional
insulation around the power cables, above that supplied by
the manufacturer, at such contact points. In vacating the
citations involved, the Commission emphasized that the
standard at issue "does not state that `additional
insulation' must be placed between `powerlines' and
pipelines; it merely requires separation or insulation." 4
FMSHRC at 149. Thus, the Commission held that the Secretary
was required to show, through objective evidence, that the
insulation provided in the power cable was insufficient at
the specified contact points, given the specific conditions
found in the mine.
The safety standard at issue in this proceeding
specifically states that "additional insulation" must be
provided at specified points. Thus, even if the cables
are "well separated or insulated," additional insulation
is required.
Western Fuels also cites the decision of Judge George A.
Koutras in Cyprus Emerald Resources Corp., 11 FMSHRC 2329
(November 1989). In that case, a citation was issued
because a "light switch power cable was not adequately
protected where [it] passed over [an] energized trolley
wire." 11 FMSHRC at 2337. The safety standard cited, 30
C.F.R. � 75.517, provides that "power wires and cables,
except trolley wires, trolley feeder wires, and bare signal
wires, shall be insulated adequately and fully protected."
Judge Koutras used the Homestake approach and determined
that, in order to establish that a power cable is not fully
protected, the inspector "must, on a case-by-case basis,
make an objective evaluation of all the circumstances
presented ... [to] support a reasonable conclusion that the
cable is located and utilized in such a manner as to
expose it to physical damage." 11 FMSHRC at 2345. While I
am in agreement with the judge's approach in that case, it
is not applicable here. Section 75.516-2(c) does not
provide that cables be adequately pro- tected and insulated,
it requires that "additional insulation"
be provided at specified locations.
Finally, Western Fuels points to the decision of Judge
John J. Morris in Western Fuels-Utah, Inc., 16 FMSHRC 295
(February 1994). In that case, a communication cable
crossed over a power cable and an MSHA inspector issued a
citation for a violation of section 75.516-2(c). Judge
Morris affirmed the citation. Western Fuels argues that
Judge Morris held that an objective evaluation of the
particular conditions observed by the MSHA inspector was
required. Although Judge Morris cited Homestake and Cyprus
Emerald in his decision, it is not clear to me that he
applied them in his analysis. 16 FMSHRC at 305-06. In any
event, he did not hold that the Secretary must show that the
existing insulation is inadequate in order to sustain a
violation of subsection 2(c).
I conclude that the Secretary was not required to show
that the insulation and outer jacket on the communication and
power cables was insufficient in order to sustain a
violation of 30 C.F.R. � 75.516-2(c) in this case. The fact
that the cables were in good condition, were well insulated
and protected by outer jackets, and were unlikely to be
struck by mobile equipment does not invalidate the citation.
These facts and other environmental factors relate to the
gravity of the violation, not to the fact of violation.
In large measure, Western Fuels is arguing that the hazard
is so remote in this case that enforcement of the standard
in the manner advocated by MSHA does not advance the safety
of its miners. It maintains that an objective evaluation of
the surrounding conditions is necessary to determine if
there is a sufficient hazard to create a violation. There
is no dispute that there was only a remote possibility that
the communication circuit could become energized by the
power cable as a result of this violation. The safety
resources of MSHA and mine operators are finite. To the
extent that MSHA is enforcing this standard in the manner
described above, and mine operators are employing its
resources to comply with the standard, those resources
cannot be applied to other more serious hazards. Thus,
Western Fuels is questioning the opportunity cost of
enforcing this safety stand-ard without regard to the hazard
created. This issue, however, is beyond my authority and is
more properly addressed to the Assistant Secretary for Mine
Safety and Health.
IV. ORDER
Accordingly, Citation No. 4059968 is AFFIRMED and this
proceeding is DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Karl F. Anuta, Esq., 1720 14th Street, P.O. Box 1001, Boulder,
CO 80306 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)
/rwm
**FOOTNOTES**
This safety standard is currently at 30 C.F.R. � 57.12082.