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BHP MINERALS INTERNATIONAL INC.
August 19, 1996
CENT 92-329


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730  K  STREET  NW,  6TH  FLOOR

                      WASHINGTON,  D.C.   20006


                           August 19, 1996

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :    Docket Nos. CENT 92-329
          v.                      :                CENT 93-272
                                  :
BHP MINERALS INTERNATIONAL INC.   :


BEFORE:  Jordan, Chairman; Holen, Marks and Riley, Commissioners


                               DECISION

BY THE COMMISSION:

     This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994), involves a citation issued to BHP Minerals International
Inc. ("BHP") alleging a significant and substantial ("S&S")[1]
violation of 30 C.F.R. � 77.506 (1995).[2]   Administrative Law
Judge Arthur Amchan found that BHP had not violated the standard.
16 FMSHRC 1177 (May 1994) (ALJ).  For the reasons that follow, we
reverse and remand.

                                  I.

                  Factual and Procedural Background

     BHP operates the Navajo mine, a surface coal mine in
northwestern New Mexico.  16 FMSHRC at 1177.  On April 28, 1992,
during an electrical inspection of the mine, Inspector David Head,
with the Department of Labor's Mine Safety and Health Administration
("MSHA"), examined a high-wall drill.  Id. at 1179; Tr. 55, 61.
The circuit for the motor was protected by a circuit breaker that
provided both instantaneous and thermal overcurrent protection.
Tr. 91-92.  The instantaneous breaker had a "low" and "high" setting
with eight intermediate settings.  Tr. 64, 74.  The trip unit on
the instantaneous breaker provided settings that ranged from 1800
to 6000 amperes ("amps").  Tr. 74.  The breaker had been set on 6000,
the highest setting.  Tr. 64.

     Based upon calculations performed in accordance with the
National Electric Code ("NEC"), Inspector Head determined that
adequate instantaneous overcurrent protection had not been provided
for the motor.  Tr. 65-67.  The inspector stated that section 430-52
of the NEC provides that an instantaneous breaker must be set at the
lowest setting capable of carrying the "normal starting load" of the
motor.  Tr. 65, 67.  This setting is calculated by multiplying the
full-load current of the motor by 700%.  Tr. 65.  If the motor cannot
operate at that level, the setting may be increased only as necessary
by increments, but in no event shall it exceed 1300% of the motor's
full-load current.[3] 16 FMSHRC at 1179; Tr. 65-67.  From the
nameplate of the drill motor, the inspector determined that the full-
load current of the motor was 400 amps.  16 FMSHRC at 1180.  He then
calculated that 1300% of the full-load current was 5200 amps (400
multiplied by 1300%). Because the breaker had been set on high, or
at 6000 amps, he concluded that it had been set in excess of 1300%
of the full-load current of the motor (5200 amps).   Tr. 65-67, 81.

     The inspector explained that an instantaneous breaker
automatically trips when there is a short circuit and that, if it
were set too high, the breaker would not stop electrical current
until dangerous amounts had flowed to the motor.  Tr. 66, 68-70.
A delay of only fractions of a second in tripping the breaker would
increase miners' exposure to the hazards of fire, electrical burns
or shock.  16 FMSHRC at 1179. Accordingly, Inspector Head issued
a citation alleging an S&S violation of section 77.506.  Id.  The
citation was terminated after the operator adjusted the breaker
to the "low" setting.  Tr. 71.  BHP challenged the citation and
the matter proceeded to hearing before Judge Amchan.

     The judge determined that the instantaneous circuit breaker
had been set in excess of 1300% of the full-load current of the
motor.  16 FMSHRC at 1180.  In reaching this determination, the
judge credited testimony that the full-load current was approximately
438 amps and that the breaker would stop the flow of electricity
to the motor at 6000 amps at the high setting.[4]  Id. at 1179,
1180.   Nonetheless, the judge found that the standard did not
provide the operator with sufficient notice of its requirements
and that a "reasonably prudent operator's electrician" would not
have recognized that the circuit breaker had been set in violation
of the standard or the NEC.  Id. at 1180-81. He explained that
neither section 77.506 nor the NEC was clear in specifying the
allowable settings for BHP's circuit breaker.  Id. at 1180.
Accordingly, the judge vacated the citation.  Id. at 1184.

     The Secretary filed a petition for discretionary review
challenging the judge's determination, which the Commission
granted.

                                 II.

                             Disposition

     The Secretary argues that the judge erred in finding that
BHP did not violate section 77.506 and in holding that application
of the standard and NEC were not clear. PDR at 3-5.[5]  The
Secretary notes that the judge found that the instantaneous circuit
breaker setting exceeded 1300% of the full-load current of the motor
and that the parties agreed on the meaning of the standard and the
applicability of the NEC.  Id. at 5. BHP responds that the judge
correctly determined that the standard failed to give adequate
notice of its requirements, as supported by the witnesses' differing
testimony on whether the instantaneous breaker had been set beyond
the limit allowed by the NEC.  BHP Br. at 3-5.  BHP asserts that
it never agreed that a setting in excess of 1300% amounted to a
violation of section 77.506.  It contends it presented testimony
that the setting, which was below 1300%, did not amount to a
violation.  Id. at 6.  BHP explains that neither the NEC nor the
regulation set forth a particular setting for the breaker.  Id.
In addition, neither the NEC nor the regulation specify that a
setting exceeding 1300% will fail to "protect all electrical
equipment and circuits [against] short circuits and overloads."
Id., quoting 30 C.F.R. � 77.506.  It contends that, regardless of
the setting of the instantaneous breaker, overcurrent protection
was provided by the thermal breaker.  Id. at 7.

     Applicability of the NEC is undisputed in determining
compliance with section 77.506.   Title 30 C.F.R. � 77.506-1,
entitled, "Electric equipment and circuits; overload and short
circuit protection; minimum requirements," provides that "[d]evices
providing either short circuit protection or protection against
overload shall conform to the minimum requirements for protection
of electric circuits and equipment of the National Electric Code,
1968."  In addition, as the judge found, the "parties agree that
the criteria for complying with section 77.506 are found in the
National Electric Code (NEC) and, more specifically, NEC section
430-52."  16 FMSHRC at 1179.

     Witnesses had differing opinions on whether the breaker had
been set in excess of 1300% of the full-load current of the drill
motor in violation of section 430-52 of the NEC.  Lynn Byers, BHP's
chief mechanic, testified that the full-load current of the motor
was 438 amps, that the breaker would trip at 5400 amps and that,
accordingly, the breaker had been set at 1232% of the full-load
current of the motor.  16 FMSHRC at 1180; Tr. 113.  In contrast,
the Secretary's witnesses testified that the full-load current was
400 amps, that the breaker would trip at 6000 amps, and that the
breaker had been set in excess of 1300%.  16 FMSHRC at 1180.  The
judge found that the full-load current was approximately 438 amps
and that the breaker was set at 6000 amps.  Id.  Neither party
disputes these findings. See  BHP Br. at 5; PDR at 4-5.  Therefore,
under the judge's findings, the instantaneous breaker had been
set in excess of 1300% of the full-load current of the drill's
motor (which equaled a ceiling of 5694 amps) in violation of the
requirements of the NEC and section 77.506.

     Although section 77.506 and the NEC do not specify the exact
setting for the instantaneous breaker and witnesses disagreed on
whether the breaker setting exceeded that allowed by the NEC, we
reject BHP's argument that section 77.506 did not provide it with
adequate notice that BHP had violated the regulation.  When faced
with a challenge that a standard fails to provide adequate notice
of prohibited or required conduct, the Commission has applied an
objective standard, i.e., the reasonably prudent person test.  The
Commission has explained that the appropriate test is whether a
reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.  Ideal Cement
Co., 12 FMSHRC 2409, 2416 (November 1990).  In order "to afford
adequate notice and pass constitutional muster, a mandatory safety
standard cannot be `so incomplete, vague, indefinite or uncertain
that [persons] of common intelligence must necessarily guess at its
meaning and differ as to its application.'"  Id., quoting Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (December 1982) (citations
omitted).  The Commission has recognized that the various factors
that bear upon what a reasonable person would do include accepted
safety standards in the field, considerations unique to the mining
industry, and the circumstances at the operator's mine.  See U.S.
Steel Corp., 5 FMSHRC 3, 5 (January 1983).

     Inspector Head and the Secretary's expert witness, Terrence
Dinkel, testified that the NEC requires an instantaneous circuit
breaker to be set at 700% of its full-load current and then to have
that setting increased only as necessary to start the motor, but
never exceeding the 1300% maximum limit. Tr. 74-75, 117-18.
Inspector Head estimated that 98% of all equipment should be able
to start at 700% of the full-load current.  Tr. 79.  Dinkel also
stated that 700% is almost always a sufficient setting to start a
motor and that the higher settings are reserved for rare cases
involving high-torque motors that cannot start at lower settings.
Tr. 118-19.  Byers, BHP's chief mechanic, acknowledged that "[t]he
code [NEC] wants to give you what you need, but they don't want to
give you anything more."  Tr. 112.

     BHP's instantaneous breaker had been set at the highest
setting.  Tr. 64.  There was no indication in the operator's
records of the reasons for that setting or whether lower settings
had been tried.  Tr. 90.  When the breaker was placed on the
lowest setting, or 1800 amps, in order to abate the citation,
the motor was able to function.  Tr. 71.  In light of the testimony
of all witnesses that the breaker was required to be placed on
the lowest possible setting to start the motor and unrebutted
testimony that the higher settings are reserved only for rare
cases involving special equipment that cannot start at lower
settings, we conclude that a reasonably prudent person would have
recognized that placing the instantaneous breaker on the highest
setting would not provide adequate overcurrent protection as
required by section 77.506.

     We find unpersuasive BHP's argument that, regardless of the
setting of the instantaneous breaker, BHP did not violate section
77.506 because overcurrent protection was also provided by the
thermal breaker.  BHP Br. at 7.  It is not clear from the record
that the instantaneous breaker and thermal breaker provided
identical protection.  See Tr. 106-07.  In any event, even if
their protection were identical, section 77.506 does not provide
that automatic circuit-breaking devices need not adequately
protect against short circuits and overloads if a functioning
backup system exists.  Rather, the standard's broad language
requires that any automatic circuit-breaking device must protect
against short circuits and overloads.  Thus, BHP was required
to properly set the instantaneous breaker independent of its
requirement to properly set the thermal breaker.[6]

                                 III.

                              Conclusion

     For the foregoing reasons, we reverse the judge's
determination that BHP did not violate section 77.506. We
remand for consideration of whether the violation was S&S and
for the assessment of a civil penalty.


                              Mary Lu Jordan, Chairman

                              Arlene Holen, Commissioner

                              Marc Lincoln Marks,
                              Commissioner

                              James C. Riley, Commissioner


          **FOOTNOTES**

     [1]:  The S&S terminology is taken from section 104(d)(1) of
the Act, 30 U.S.C. �  814(d)(1),  which  distinguishes as more
serious in nature any violation that "could significantly  and
substantially contribute to the cause and effect of a . . . mine
safety or health hazard . . . ."

     [2]:  30 C.F.R. � 77.506, entitled,  "Electric equipment and
circuits; overload and short-circuit protection," provides:

               Automatic  circuit-breaking  devices  or
          fuses of the correct type and capacity  shall
          be  installed  so  as to protect all electric
          equipment and circuits  against short circuit
          and overloads.

     [3]:   Section 430-52 of the NEC  was  not  admitted  as  an
exhibit into the official record.

     [4]:  Under  the  judge's  findings,  1300% of the full-load
current of the motor is 5694 amps (438 multiplied  by 1300%).  16
FMSHRC  at  1180.   Because the judge found that the breaker  had
been set at 6000 amps,  it had been set in excess of 1300% of the
motor's full-load current.

     [5]:  Pursuant to Commission  Procedural  Rule  75(a)(1), 29
C.F.R.  �  2700.75(a)(1)  (1995),  the  Secretary designated  his
petition for discretionary review as his brief.

     [6]:   Evidence  that  the  thermal  breaker  also  provided
overcurrent protection would be relevant to  the determination of
whether BHP's violation was S&S.