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[DOCID: f:c-9681.wais]
FALKIRK MINING COMPANY
January 13, 1997
CENT 96-81
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268
                        January 13, 1997
SECRETARY OF LABOR,            :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :     Docket No. CENT 96-81
          Petitioner           :     A.C. No. 32-00491-03514 :
                               :
                    v.         :
                               :     Falkirk Mine
FALKIRK MINING COMPANY,        :
          Respondent           :
                            DECISION
Appearances:  Kristi L. Floyd, Esq., Office of the
              Solicitor,
              U.S. Department of Labor, Denver, Colorado,
              for Petitioner;
              Andrew S. Good, Esq., North American Coal
              Corporation, Dallas, Texas, for Respondent.
Before:  Judge Manning
     This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Falkirk
Mining Company ("Falkirk"), pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.  815
and 820.  The petition alleges one violation of the Secretary's
safety regulations.
     A hearing was held in Washburn, North Dakota.  The parties
presented testimony and documentary evidence, but waived post-
hearing briefs.  For the reasons set forth below, I affirm the
citation and assess a civil penalty of $50.
   I.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
     A.  Background
     Falkirk operates the Falkirk Mine, a surface coal mine, in
     McLean County, North Dakota.  On September 13, 1995, MSHA
     inspec-tor Calvert Browning issued Citation No. 4058725 to
     Falkirk alleging a violation of 30 C.F.R.  77.502.  The
     citation states:
               The electrical power connections were
          unguarded and exposed where the welding leads
          connected to the generator mounted on the 369
          belt maintenance truck.  Adequate examina-
          tions were not made to disclose a potentially
          dangerous condition.
     On November 5, 1995, MSHA issued a subsequent action notice
for the citation, which states as follows:
               Citation No. 4058725, issued on 09-13-
          95, for a violation of 77.502, was modified
          during a Health and Safety Conference held
          10-27-95.  Mitigating information provided by
          the operator and the results of the confer-
          ence were as follows:
                    The Part and Section of Title
               30 CFR was modified to indicate the
               proper standard.  The electrical
               connections were not insulated to
               the same degree of protection as
               the remainder of the wire.
               Section I, item 9c is modified to
          indicate 77.504.
Section 77.504, entitled "Electrical Connections or Splices;
Suitability," provides:
               Electrical connections or splices in
          electric conductors shall be mechanically and
          electrically efficient, and suitable connec-
          tors shall be used.  All electrical connec-
          tions or splices shall be reinsulated at
          least to the same degree of protection as the
          remainder of the wire.
     Inspector Browning determined that the alleged violation was
neither serious nor of a significant and substantial nature
("S&S").  He also determined that Falkirk's negligence was
moderate.  The Secretary proposed a penalty of $50 for the
citation.
     The basic facts in this case are not in dispute.  The cited
     equipment is a welding machine that generates DC current for
     welding operations.  Two posts are on the front of the
     welding machine (the "welder"), one marked positive and the
     other marked negative.  These posts are recessed from the
     vertical plane of the front of the welder.  Welding leads
     are attached to each of the posts with lugs.  The lugs are
     placed around the posts and tightened.  A nut is also
     attached to the top of each post.  An insulated wire is
     attached to each lug.  These wires are welding leads that
     are used in welding operations.
     On the day of the inspection, the positive lead was insu-
     lated with insulating material.  The positive post and lug
     were insulated by their recessed position.  An insulating
     sleeve was present where the wire entered the lug.  The area
     where the negative lead attached to the welder was not fully
     insulated.  A bare conductor was present where the welding
     lead entered the lug because an insulating sleeve was not
     present.  Part of this bare conductor was outside the
     vertical plane of the front of the welder.  The conditions
     at the welder are depicted in Ex. G-7.
     B.  Arguments of the Parties
     The Secretary contends that he established a violation
     because the electrical connection on the negative side was
     not reinsulated to the same degree of protection as the
     remainder of the wire as required by section 77.504.  The
     Secretary relies on the plain language of the standard and
     the deference that is owed his reasonable interpretations of
     safety standards.
     Falkirk argues that the Secretary's interpretation of the
     safety standard is not reasonable.  First, it contends that
     the application of the standard is limited to splices and
     similar electrical connections.  It argues that the cited
     area was neither a splice nor an electrical connection.
     Second, it contends that because the cited area was never
     insulated, the standard does not apply.  Section 77.504
     requires wires to be "reinsulated" where they have been
     stripped of insulation to make a splice or similar
     connection.  Third, Falkirk argues that the Secretary did
     not require it to insulate the alleged electrical connection
     to abate the citation.
     Finally, Falkirk argues that the Secretary failed to provide
     the mining community with notice of his interpretation of
     the safety standard.  It states that the Secretary's witness
     could not think of a single MSHA document that supports the
     Secretary's interpretation of the standard.  Falkirk also
     maintains that MSHA did not make any other attempt to
     provide notice of his interpre-tation.  In addition, it
     notes that the Secretary's witness was unaware of any other
     citations issued by MSHA under similar con-ditions prior to
     September 1995.[1]
     C.  Analysis of the Issues
     I find that the Secretary's interpretation of section 77.504
     is reasonable and is supported by the plain language of the
     standard.  Thus, I do not consider issues of deference.
     Mr. Terrance D. Dinkel, an electrical engineer with MSHA's
     Denver Safety and Health Technology Center, testified that
     the cited area is an electrical connection as that term is
     used in the standard.  He defined an electrical connection
     as a connection of an insulated wire to another insulated
     wire or to a piece of electric equipment to allow electric
     current to flow through the connection.  (Tr. 14-16, 22, 37-
     38).  Examples of electrical connections include a splice, a
     junction box, a plug in an elec-tric outlet, and an
     insulated wire attached to a terminal of a light switch.
     The safety standard states on its face that it applies to
     "all electrical connections."  The term "electrical
     connection" is not so complicated that it necessarily
     requires the Secretary to provide written policy guidance to
     mine operators.  An elec-trical connection, as applicable
     here, is simply a connection between an insulated wire and a
     piece of electric equipment which allows current to flow
     either from the wire to the equipment or from the equipment
     to the wire.  An electrical connection need not be a splice
     between two wires.  The connection must include at least one
     insulated wire to be covered by the standard, how-ever.
     Connections between uninsulated wires or between an
     uninsulated wire and a piece of electric equipment are not
     required to be "reinsulated" at the point where they are
     connected.  (Tr. 15).
     The connection between the welder and a welding lead is
     clearly an electrical connection.  (Tr. 62-63).  The welder
     generates DC current.  This current passes through the
     electrical connection to the end of the welding lead.  As
     explained above, the connection is very similar to the
     connection on an automobile or truck battery.  The lead is
     attached to a post on the welder by means of a lug that is
     tightened to the post.  The electricity passes through the
     post, through the lug, and into the lead.  The lead is an
     insulated wire.  Thus, I find that the cited connec-tion is
     an electrical connection in insulated wire as that phrase is
     used in the standard.
     The cited standard requires wires to be reinsulated at elec-
     trical connections.  Falkirk maintains that because the area
     where the leads connect to the welder (the "terminals") had
     never been insulated, the standard cannot apply.  How can
     you reinsu-late something that was never insulated in the
     first place?  It is clear that the posts and the lugs on the
     welder were never insulated in the sense of an insulating
     material being applied to them.  It is not clear whether the
     bare conductor at the negative post was ever insulated.  Mr.
     Dinkel testified that there are two basic ways to insulate
     connections under section 77.504.  First, insulating
     material can be placed around the connection. (Tr. 23-25,
     52-54).  Second, the connection can be insulated by isola-
     tion.  Id.  For example, the connection can be placed in a
     junction box or an air gap can be created by recessing the
     connection.  Id.
     Mr. Dinkel testified that, at the time the citation was
     issued, the posts and part of the lugs were insulated by
     iso-lation.  (Tr. 27-31).  These parts of the connection
     were recessed from the vertical plane of the front of the
     welder.
     He testified that although someone could deliberately come
     in contact with the posts, they were protected by location
     and were therefore insulated.  That part of the lug on the
     positive side that protruded outside of the vertical plane
     of the welder was protected by an insulating sleeve.  Part
     of the lug on the nega-tive side also protruded outside the
     vertical plane of the welder, but this area had not been
     reinsulated with an insulating sleeve.  Id.  The sleeve was
     either missing from the negative welder lead or a lead
     without such a sleeve had been installed.  Dinkel testified
     that it was this lug and the bare wire entering the lug that
     was not reinsulated as required by the standard.
     Thus, according to Mr, Dinkel, Falkirk was not required to
     "reinsulate" those areas of the terminals that were recessed
     because they were already insulated by location.  (Tr. 58).
     Or, to put it another way, Falkirk actually reinsulated
     these areas of the terminals because they were recessed
     behind the vertical plane of the welder.  Dinkel testified
     that Falkirk was only required to reinsulate the lug on the
     negative side where the insulating sleeve was not present.
     I credit Mr. Dinkel's tes-timony in this regard.  Id.
     Falkirk also argues that the Secretary did not require it to
     insulate the terminals to abate the citation.  Falkirk
     abated the citation by installing a rubber flap in front of
     the terminals.  I find that Falkirk reinsulated the
     terminals when it abated the citation.  Mr. Dinkel's broad
     definition of insulation would include the rubber guard that
     Falkirk installed.  The guard pro-vided physical separation
     and the guard was made of an insulating material.
     Finally, Falkirk contends that the Secretary failed to pro-
     vide any notice to the mining community of its requirement
     that terminals on welders are electrical connections that
     must be reinsulated.  As stated above, I have determined
     that the Secre-tary's interpretation of section 77.504 is
     supported by the plain language of the standard.
     Ordinarily, when the plain language of safety standard
     supports a violation, the Secretary is not required to show
     that he provided additional notice of the requirements of
     the standard.  Nevertheless, the language of the standard is
     "simple and brief in order to be broadly adaptable to myriad
     circumstances."  Kerr-McGee Corp., 3 FMSHRC 2496, 2497
     (November 1981); Alabama By-Products Corp., 4 FMSHRC 2128,
     2130 (December 1982).  Such broad standards must afford
     reasonable notice of what is required or proscribed.  U.S.
     Steel Corp., 5 FMSHRC 3, 4 (January 1983).  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.'"  Ideal Cement Co.,
     12 FMSHRC 2409, 2416 (November 1990)(citation omitted).  A
     safety standard must "give the person of ordinary
     intelligence a reason-able opportunity to know what is
     prohibited, so that he may act accordingly."  Lanham Coal
     Co., Inc., 13 FMSHRC 1341, 1343 (September 1991)(citation
     omitted).  In this context, the Commis- sion further
     explained:
               When faced with a challenge that a
          safety standard failed 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 recently summarized this test
          as "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."
Id. (citations omitted).
     I find that a reasonably prudent person would have recog-
nized that the terminals on a welder that generates electricity
are electrical connections in insulated wire and that section
77.504 requires that these terminals be insulated to prevent
inadvertent contact with the terminals by persons working in the
area.  As stated above, the plain language of the standard states
that "[a]ll electrical connections ... in insulated wire shall be
reinsulated at least to the same degree of protection as the
remainder of the wire."  Given the Secretary's broad, common-
sense definition of the term insulation set forth by Mr. Dinkel,
a reasonable prudent person would have recognized that the miss-
ing sleeve on the lug attached to the negative post needed to be
replaced to comply with the safety standard.  Additional expla-
nation or interpretation of the standard by the Secretary was not
necessary in this instance.
     In addition, a safety booklet published by the American
Welding Society entitled "Safety in Welding and Cutting," makes
clear that the accepted industrial safety practice is to protect
terminals for welding leads from "accidental electrical contact."
(Tr. 19-20, 48-49, 61-62; Ex. G-5).  This document is consistent
with the testimony of Mr. Dinkel.
     D.  Civil Penalty Assessment
     Section 110(i) of the Mine Act sets forth six criteria I
     must consider in determining the appropriate civil penalty.
     Based on this criteria, I assess a civil penalty of $50 for
     the violation.  Falkirk was issued 9 citations in the 20
     months preceding the inspection in this case.  (Ex. G-1).
     None of the citations were S&S.  It appears that the mine
     produced 26,000 tons of coal and employed 251 individuals.
     Id.  I find that the Falkirk Mine is a small to medium sized
     operation.  The violation was promptly abated in good faith.
     I find that the violation was not serious or S&S.  Only a
     small area of the electrical connection was exposed.  In
     addi-tion, the area that was exposed would generally be the
     ground for the welder and would not pose a safety hazard.
     (Tr. 59).  A hazard would be presented only if negative
     welding was being performed with the welder.  In such an
     instance, the voltage between the negative terminal and the
     earth would be approxi-mately 75 volts.  (Tr. 55).  There is
     no evidence that negative welding ever occurs at the mine.
     (Tr. 64).[2]
     I find that Falkirk's negligence was low.  There is no
     evidence that the mine's employees were inattentive to
     safety in general or believed that the condition of the
     welder presented a safety hazard.  As stated above, there is
     no showing that the cited condition presented a serious
     hazard to employees.
                           II.  ORDER
     Accordingly, Citation No. 4058725 is AFFIRMED and Falkirk
     Mining Company is ORDERED TO PAY the Secretary of Labor the
     sum of $50.00 within 40 days of the date of this decision.
                              Richard W. Manning
                              Administrative Law Judge
Distribution:
Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Andrew S. Good, Esq., NORTH AMERICAN COAL CORP., 14785 Preston Road, Suite
1100, Dallas, TX 75240-7891 (Certified Mail)
                              RWM
**FOOTNOTES**
     [1]:  Falkirk raised other issues in a motion for summary
decision.  I ruled on these issues in an order denying Falkirk's
motion.  Falkirk Mining Co., 18 FMSHRC 1521 (August 1996).  At
the time I issued that order, genuine issues of material fact had
not been resolved.  Accordingly, any findings and conclusions
contained in that order that are inconsistent with this decision
are hereby superseded.
  To establish a violation of a safety standard, the Secretary is
not required to prove that the violation contributed to a safety
hazard.  Asarco Inc. v. FMSHRC, 868 F.2d 1195, 1197 (10th Cir.
1989); Allied Products Co., 666 F.2d 890, 892-93 (5th Cir. 1982).
The degree of the hazard is taken into consideration when
assessing a civil penalty.