**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

1331PENNSYLVANIA AVE., N.W., SUITE 1400

WASHINGTON,DC 20004-1710

TELEPHONE:202 434-9987 / FAX 202 434-9949

 

 

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**DECISION AND ORDER**

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Appearances:              EdwardV. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois,for the Petitioner  

 

Jason W. Hardin, Esq., and Artemis D.Vamianakis, Esq., FABIAN VANCOTT, Salt Lake City, Utah, for the Respondent

 

 

Before: JudgeYoung

 

**I.              ****SUMMARY**

** **

**CitationNo. 9199021, 30 C.F.R. § 75.517: Failure to insulate adequately and properlyprotect power cable.**Cable on a 995-volt continuous miner was not insulatedadequately and properly protected. 

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Facts                                                                pp.2-6 (Slip Op.)

Fact of Violation:                   Affirmed        pp. 6-8

Negligence:                            Low                pp. 8-9

S&S:                                       Yes                  pp.9-25

Penalty:                                   $1,800            pp. 25-26

 

Thiscase arising under the Mine Safety and Health Act of 1977 (“Mine Act”) involvesa single citation that alleges Prairie State Generating Company LLC (“PSGC” or“Respondent”) violated 30 C.F.R. § 75.517 for failing to insulate adequatelyand fully protect the power cable of a continuous mining machine. The Secretarycited the violation as significant and substantial (“S&S”), with moderatenegligence and a reasonably likely risk of fatal injury to one miner from thehazard contributed to by the violation. For the reasons set forth below, Iaffirm the violation and the S&S finding, find that the violation was theresult of low negligence, and assess a penalty of $1,800. 

 

**II.            ****FACTS**

            

PSGCoperates the Lively Grove Mine and an associated coal-fired power plant locatedacross the road from the mine portal in Southern Illinois. Tr. 19; Ex. JJ. PSGCis a nonprofit owned and operated by several municipal utilities. Tr. 243. 

 

OnJuly 16, 2021, Mine Safety and Health Administration (“MSHA”) Inspector StephenTisdale was conducting a regular quarterly “EO1” inspection of the Lively GroveMine. Tr. 28. He was accompanied by John Garrett, a representative of theoperator with responsibility for safety and compliance issues. Tr. 30, 403-04,406. 

 

Aspart of the inspection, Inspector Tisdale examined the power cable attached tocontinuous mining machine No. CM-201. Tr. 37.[1]Inspector Tisdale examined the cable by “walking” it – using his bare hands tofeel the cable for any damage – after de-energizing and locking out themachine. Tr. 37.

            

Whileexamining the cable, Inspector Tisdale discovered an area of surface damage onthe outer jacket of the cable. Tr. 38. He showed the area of damage to Garrettand used a small screwdriver to “clean” the damaged area.[2] Tr. 46-49.

            

Basedon his evaluation of the surface damage, Inspector Tisdale decided to examinethe interior of the cable. Tr. 50-51. This is commonly done by cutting open thejacket with a knife, exposing the interior of the cable. Tr. 42. When thejacket was cut open, the inspector found a small hole penetrating completelythrough the jacket. Tr. 38-39.

 

InspectorTisdale issued a citation for failure to protect the CM-201 cable from damage,exposing miners to the risk of electric shock. Ex. P-1. The violation wasassessed as S&S, with the potential exposure of one miner to a fatalinjury. *Id.* PSGC abated the violation by removing the cable fromservice. *Id.*

 

**A.   ****TheCondition of the Cable**

            

Boththe actual damaged segment of the outer jacket and a sample cross-section ofcable were produced as physical exhibits. *See*Ex. P-7 (photograph ofcable). The cable components include two uninsulated ground wires, threeinsulated and shielded phase conductors, a pilot wire, and an inert plasticspacer. Tr. 93, 154, 262. The resulting cable is nearly solid, and witnessestestified that it is difficult to flex or bend by hand. Tr. 363-64, 553. 

            

Theentire cable is braided inside, so that components twist around one another. Tr.93, 261-62; Ex. P-7. The cable is rated to carry 2,000 volts. Tr. 53. Thecontinuous miner at issue, CM-201, draws 995 volts and is commonly referred toas a “995 miner.” Tr. 53, 59. 

 

Thephase conductors are insulated with a durable insulated cover. Tr. 206-07. Theinsulation is 80 mills, or 0.08”, thick. Tr. 209-10. The insulation is coveredwith braided copper shielding that is “tinned” to resist corrosion. Tr. 194-195.The tinned shielding is grounded. Tr. 194. 

 

Theinspector found a small hole, approximately 1/4 inch to 5/16 inch long,penetrating completely through the jacket. Tr. 38-39. The hole did not piercethrough the jacket in the most perceivable area of damage to the exterior ofthe jacket but resulted from a less-obvious area of damage about aninch-and-a-half away. Ex. P-7. The hole penetrated the jacket above one of theground wires, with the striations of the ground wire visible impressed in thecable jacket in the area of damage. *Id.*

 

InspectorTisdale testified that damage to the outer jacket could expose a miner handlingthe cable in the damaged area to the risk of electric shock. Tr. 57-60. However,the shock hazard could only present if the insulation to at least one of thephase conductors was also breached. In that event, the current from the phaseconductors could flow to the uninsulated copper ground wires, to the groundedshielding, or to the exterior of the cable. Tr. 68-69.

 

Whilethe exterior of the cable was damaged, exposing the interior of the cable, theinner insulation around the phase conductors was not penetrated. Tr. 393-94. However,it was discovered that there was damage to the insulation consists of minorsurface cracks that the operator’s expert referred to as “weather cracking.”[3] Tr. 98, 393-394;Ex. P-2. 

 

Thedamage to the phase wire insulation is consistent with the deformationdescribed by Inspector Tisdale. The weather cracking is only visible if theinsulation is flexed. This suggests that severe crushing force was applied tothat area of the cable, because the cable is molded as a unit, with componentscompressed tightly within the jacket. Tr. 93. 

 

Onlysevere stress could cause enough movement to damage the phase insulator, whichis made of a flexible material. Tr. 154-55. Furthermore, the mine’s compliancemanager, Todd Grounds, essentially acknowledged that Inspector Tisdale hadnoted during his examination that the cable was misshapen. Tr. 323. 

 

Inaddition to the shielding and the insulation around the phase conductors, thecable was also guarded by a circuit that would shut off the current if strayelectricity inside the cable exceeded six or seven amps. Tr. 174, 523. *Seealso* Ex. T (providing specifications for the ground fault relay).

 

**B.   ****PotentialHazard from Exposure to the Interior of an Energized Cable**

 

BothInspector Tisdale and MSHA Special Investigator Bubby Whitfield, MSHA’s expertwitness, testified that a fatal injury could result from exposure to as littleas 100 milliamps of electricity. Tr. 59-60, 167-68. This testimony was essentiallyundisputed. Thus, a fatal injury could result from exposure to as little asthan 1/70 the amperage required to shut down the power to the continuous miner.

 

Accordingto Inspector Tisdale’s testimony, there were also observable “gaps” in thebraided copper shielding which serves as a grounding. Tr. 128. There issufficient evidence to support a finding that the integrity of the shielding,like that of the phase conductor’s insulation, had been compromised.[4]

 

Inaddition to the damage to this cable noted during the inspection, the mine’sown inspection records show that the same cable was repaired after a“questionable spot” was discovered.[5]Tr. 283; Ex. U (Lively Grove maintenance report describing this “questionablespot” and subsequent repair work). The cable was repaired by cutting off theend of the cable past the “questionable” portion and reattaching the cut end tothe machine. Tr. 372; Ex. U. 

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**C.   ****The CM-201Continuous Miner**

            

Thecable in question here connects the power center to the CM-201 continuous minerand provides electric power to the machine. Tr. 36; Ex. P-1. Cables in thismine could be up to 1,000 feet long. Tr. 36. 

 

Whilethe continuous miner is cutting the coal seam, it carries a coiled length ofcable called the “cut loop.” Tr. 336-37. About 60 to 80 feet of cable iscarried in the cut loop, which allows the continuous miner machine to move intothe cut while minimizing the amount of loose trailing cable. Tr. 337. This partof the cable is routinely “roped up” or coiled. Tr. 337-38. The damage to theinner insulation was found in the “cut loop” of the cable. Resp’t Br. at 22. *See*Tr. 77-78 (Inspector Tisdale describing the cut loop and noting “the damagedarea was 40 feet out by the connection point where the cable connected to theminer”).

 

Thecontinuous mining machines weigh approximately 50 tons and move toward the coalface to engage a cutting head to remove coal from the seam. Tr. 381-82. During each“cut,” the continuous miner typically moves forward and back at least eighttimes to make a 40-foot cut into the coal seam. Tr. 439-440. The forward andback movements of the continuous miner move the CM-201 cable trailing theminer. Tr. 328.

 

Thecontinuous miner is capable of exerting force that could flex the cable, aswell as assertions that other forces could also damage the cable. The cable iscoiled, moved, and stretched during normal mining operations. Tr. 310. Witnesseshandling the demonstrative segment of intact cable noted that it was difficultfor even a strong person to flex the entire, integrated cable manually, and theprocess of cutting the cable jacket to expose the interior components wasdescribed by the operator’s witnesses as “violent.” Tr. 335, 415.  

 

Thecable is subject to up to 40 back-and-forth movements when cutting coal duringa shift, which could put stress on the cable. Tr. 309-10. As the cable ismoved, it is bent and coiled and that could cause the damage to get worse. Tr. 132,310-11. 

 

CodyChristian, the operator’s expert witness, did testify about some future outcomes.He said that if the continuous miner ran over the cable, it would destroy it. Tr.553-56. Other machines might also run over and damage the cable, and thecontinuous miner could exert force that would stress the cable, by pushing itup against the wall or flexing it in the “bend radius[]” of the cable. Tr. 556-57.

 

**D.   ****ElectricalNon-Destructive Testing of the Cable**

 

Toensure that a cable’s electric components retain their integrity and that theyconduct and contain electric current as intended, the operator uses an electrictesting device to assess the cable. Various manufacturers produce the devices,but one common make is “Megger,” and the testing is colloquially referred to byminers as “Megging,” or testing with a “Megger.” Tr. 65. The cable here wastested using one of these devices.[6]

 

Thetesting devices are rated to handle various voltages. Ex. P-9. Proper practicerequires the use of a device capable of testing the current that the cablebeing tested may carry. *Id.;* Tr. 349-50. A common testing device is“rated,” or recommended for use, at up to 1,000 volts. The operator’selectrician and its expert witness testified that they commonly carry a 1,000voltmeter with them and use it during their work. *See* Tr. 350, 542.

 

Whilethe cable at issue here is rated to carry 2,000 volts and the machine woulddraw 995 volts, the continuous miners operate on alternating current. Tr. 176. TheFluke testing device used here is rated based on direct current. Tr. 176. Toensure the proper rating for the device being used, a conversion factor of 1.414is used to account for the fact that alternating current operates on a “sinewave” pattern that has peaks and valleys. Tr. 177-78. *See also*P-8. Thus,the peak current for the 995 volts carried by the cable would be approximately 1407volts in total (995 x 1.414). *See* Tr. 180 (Special Inspector Whitfieldtestifying the cable would be carrying “[a]pproximately 1,400 volts AC[alternating current]”).

 

Thetotal current being tested must account for the fact that the current isdivided among the three phase conductors. Each conductor would thus be expectedto carry a peak of about 469 volts (1407/3). In the event of a phase/phaseshort circuit, where two phase conductors are exposed, the total voltage wouldbe about 938 volts (469 x 2). However, the potential hazard here, with onephase conductor exposed to a potential for a phase/ground short, the totalvoltage implicated is limited to that carried by the single phase cable, i.e.469 volts.[7]

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**III.         ****DISPOSITION**

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**A.   ****Fact ofViolation**

 

InspectorTisdale issued 104(a) Citation No. 9199021 on July 16, 2021, alleging a“significant and substantial” violation of 30 C.F.R §75.517 that was“reasonably likely” to cause an injury that could reasonably be expected to be“fatal” and was caused by Respondent’s “moderate negligence.”[8] Ex. P-1. The“Condition or Practice” is described as follows:

 

Company #201 Miner’strailing cable is not being adequately protected nor insulated. There is a holethrough the outer jacket exposing the inner energized conductors. This holemeasures approximately 1/4 of an inch in length and is approximately 40’ feetfrom the cable clamp. This machine was in service and located on the Main northunit at the time of inspection.

 

*Id.*

 

Under30 C.F.R. §75.517, “Power wires and cables, except trolley wires, trolleyfeeder wires, and bare signal wires, shall be insulated adequately and fullyprotected.” The Mine Act imposes strict liability for violations of mandatorysafety standards. Thus, the operator may be found to have violated the Actdespite the absence of any fault or negligence on its part. *Nally &Hamilton Enterprises*, 38 FMSHRC 1644, 1650 (July 2016) (citing *Sec’y ofLabor v. Nat’l Cement Co. of Cal.*, 573 F.3d 788, 795 (D.C. Cir. 2009); *SpartanMining Co.,*30 FMSRHC 699, 706 (Aug. 2008); *Asarco, Inc.,* 8 FMSHRC1632, 1634-36 (Nov. 1986), *aff’d,* 868 F.2d 1195 (10th Cir.1989)). 

 

Inorder to establish a violation of one of her mandatory safety standards, theSecretary must prove that the violation occurred “by a preponderance of thecredible evidence.” *Keystone Coal Mining Corp*., 17 FMSHRC 1819, 1838(Nov. 1995) (citing *Garden Creek Pocahontas Co.*, 11 FMSHRC 2148, 2152(Nov. 1989)).

 

Ifind that the operator violated 30 C.F.R. § 75.517. The Secretary’s witnessescredibly testified about the visible damage to the cable. Tr. 38-39, 152. InspectorTisdale noted an area of surface damage that penetrated through the insulatingouter jacket of the cable and visible deformation of the cable. Tr. 38-39, 43. 

 

Theonly way to assess the physical integrity of the interior components is to cutthe cable open, which was done here. *See**supra* Section II.A.(describing Inspector Tisdale cutting the cable). The inspection of theinterior confirmed that the exterior jacket had been fully penetrated. *Id.*

 

Althoughthe damage extending to the inside is very small – little more than a pinhole –the Secretary’s witnesses testified that this could permit electric current toescape the interior of the cable under some circumstances. Tr. 98. Theoperator’s witnesses did not refute this evidence. 

 

Ialso credit the inspector’s opinion that the cable was either flexed orcompressed by the movement of the continuous miner, or it was run over byanother piece of mobile equipment. The inspector testified that the shape ofthe cable was deformed by compression. Tr. 43. Instead of being approximatelyround, the cable was compressed into an oval profile. Tr. 43.

 

Theinspector testified that compression of the cable stresses the internalcomponents and can affect the integrity of the cable. The witness described theeffect as being “like rolling an orange in your hands, and it pulls the skinloose from what’s inside.” Tr. 128. Inspector Tisdale also testified aboutoperational conditions that could result in such damage to the cable. Tr. 132.

 

Ifind that the Secretary has demonstrated that PSGC failed to insulate adequatelyand protect the cable from damage. Both the outer and inner layers ofinsulation provide important protection against electrical shock. The evidenceestablishes that there was both visible physical damage to the outer jacket anddeformation of the cable. Most importantly, the damage to the outer jacketpenetrated through the outer layer. Accordingly, PSGC violated the standard insection 75.517 as the CM-201 Cable was not insulated adequately and fullyprotected.

 

**B.   ****TheOperator’s Negligence was Low**

 

Whilea finding of violation does not require proof that PSGC was negligent, theinspector assessed the operator’s negligence as moderate. The Secretary has theburden of proving the operator’s negligence. 

 

Iam not bound by the Secretary’s definitions of negligence but assess theoperator’s culpability holistically, using a traditional negligence analysis. *BrodyMining, LLC,*37 FMSHRC 1687, 1701 (Aug. 2015); *accord Mach Mining, LLCv. Sec’y,*809 F.3d 1259, 1264 (D.C. Cir. 2016). I find that the operatorfailed to use the requisite care a reasonable person would have employed underthese circumstances. 

 

Whilethe operator appears to have been attentive, it did not notice damage that,while not obvious, would have been found by a careful hand-over-hand examination.I infer this because the inspector did discover the damage during his ownexamination of the cable using the hand-over-hand process. 

 

Thisis not a case where the outer jacket was sliced open or split. The two visibleareas of surface damage were slight. The small surface nicks could have beenobscured by mud or dirt – the inspector in fact used a small screwdriver toclean the areas – making visual detection difficult. Furthermore, the area thatappeared to be more damaged on the outside is not where the damage pierced thejacket and exposed the inside of the cable. 

 

Theoperator’s witness testified that he would inspect the cable the same wayInspector Tisdale had – by “walking” the cable hand-over-hand, without gloves,during the permissibility examination. Tr. 304-05. The Secretary has acceptedthat the most recent permissibility exam, on July 13 – four days beforeInspector Tisdale discovered the damage – was performed this way and no damagewas discovered. *See*Sec’y’s Br. at 16 (stating “the damage to the cableoccurred sometime between the July 13th inspection and InspectorTisdale’s discovery of the damage on July 17, 2011”). 

 

Thedamage was only evident to the inspector during a hand-over-hand examination,performed without gloves. Tr. 37-38. However, the normal pre-shift examinationprocedure provides only a visual examination of the entire length of cable. Tr.303. The Secretary has not asserted that a visual pre-shift examination of thecable falls below the requisite duty of care. I also note that no citation wasissued for such failure. Tr. 111. 

 

Additionally,the cable had been either observed as damaged or examined and found to bedamaged in another location on the same date as the inspection at issue. Ex. U.Thus, it is reasonable to infer that the operator was properly attentive to thecondition of the cable. 

 

TheSecretary has not demonstrated that the visual examination is generallyinsufficient to meet the obligation to perform a proper pre-shift examination. Itherefore find that the operator’s negligence was low. 

 

**C.   ****TheCitation Was Properly Characterized as S&S.**

 

            Aviolation is properly designated as S&S if, “based upon the particularfacts surrounding the violation, there exists a reasonable likelihood that thehazard contributed to will result in an injury or illness of a reasonablyserious nature.” *Mathies Coal Co.*, 6 FMSHRC 1, 3 (Jan. 1984) (citing *CementDiv.,**Nat’l Gypsum Co.*, 3 FMSHRC 822, 825 (Apr. 1981)). The fourelements required for an S&S finding are expressed as follows:

 

(1) [T]he underlyingviolation of a mandatory safety standard; (2) the violation was reasonablylikely to cause the occurrence of the discrete safety hazard against which thestandard is directed; (3) the occurrence of the hazard would be reasonablylikely to cause an injury; and (4) there would be a reasonable likelihood thatthe injury in question would be of a reasonably serious nature.

 

*PeabodyMidwest Mining, LLC*, 42 FMSHRC 379, 383 (June 2020) (integrating therefinement of the second *Mathies* step in *Newtown Energy, Inc.*, 38FMSHRC 2033, 2037 (Aug. 2016)).

 

            AnS&S determination must be based on the assumed continuation of normalmining operations. *See Consol Pa. Coal Co.*, 43 FMSHRC 145, 148 (Apr.2021) (citing *U.S. Steel Mining Co.*, 6 FMSHRC 1573, 1574 (July 1984); *GatliffCoal Co.,* 14 FMSHRC 1982, 1986 (Dec. 1992)) (“A determination of‘significant and substantial’ must be based on the facts existing at the timeof issuance and assuming continued normal mining operations, absent anyassumption of abatement or inference that the violative condition will cease.”).

 

            Respondentincorrectly characterized the timing requirement for analyzing S&S. Itaccurately cites language from the 2021 *Consol* decision to argue thatthe analysis must be based on facts existing at the time of issuance. *See*Resp’t Br. at 5, 14. It fails, however, to recognize what the Commission saidimmediately after, and it challenges the Commission’s precedent regardingassumed continuation of normal mining operations.

 

            Respondentstates, in its description of standards,

 

A determination of “significantand substantial” must be based on the facts existing [a] at the time ofissuance and [b] assuming continued normal mining operations, absent anyassumption of abatement or inference that the violative condition will cease.

 

Resp’t Br. at 5(quoting *Consol Pa. Coal Co.*, 43 FMSHRC at 148 (citing *U.S. SteelMining Co.*, 6 FMSHRC at 1574; *Gatliff Coal Co.,* 14 FMSHRC at 1986)).It then goes on to dedicate a section to the assertion that “the citedconditions did not create an electrical shock hazard at the time of issuanceof the Citation.” *Id.* at 14 (emphasis in original).

 

            WhileRespondent correctly quotes *Consol*, that language differs from that in *U.S.Steel*. *Consol* stated the determination must be “based on” the factsexisting at the time, 43 FMSHRC at 148. *U.S. Steel*, however, stated thatthe determination must be “made at the time” the citation is issued, “*but*in the context of ‘continued normal mining operations.’” 6 FMSHRC at 1574(emphasis added). A determination “based on” the facts existing at the time ofissuance is different from one “made at the time” of issuance. The former wouldpreclude addressing continued normal mining operations.

 

            Respondentseems to argue here that the Commission changed the *U.S. Steel* standardto require analysis of whether conditions existed at the time of citation tosupport an S&S finding, with assumed continued operation being a separateanalysis—as demonstrated by its added lettering to the quotation. While Iacknowledge the language used in *Consol*, such a change did not occur.

 

            In *U.S.Steel*, the Commission immediately followed its statement of the standardwith an explicit refutation of the argument that there was no likelihood ofinjury resulting from the cable *at the time* of inspection and citation. *See*6 FMSHRC at 1574 (“We reject this narrow interpretation of the statutorylanguage. . . . . Such a measurement cannot ignore the relevant dynamics of themining environment or processes; indeed this cable was in normal use at thetime it was observed by the inspector. Under these circumstances, it was noterror for the judge to evaluate the cited violation in terms of ‘continuednormal mining operations.’”).

 

            TheCommission’s decision in *Consol*, while employing language that couldarguably support Respondent’s argument, actually reaffirms the relevantprinciple from *U.S. Steel*. The Commission rejected an argument groundedon the fact that miners did not go under the roof *on the day of*citation. *See* 43 FMSHRC at 148 (“It contends that the only hazard thatthe standard [reflectors] was designed to protect against is a miner walkingunder unsupported roof. Obviously, *the fact that no one had been identifiedas going under unsupported roof on this specific day does not negate the dangerof falling roof or that a miner on a break would not be reasonably likely tocross the threshold*.”) (emphasis added).

 

            Neithercase, therefore, supports the contention that the S&S analysis includes onlydiscussion of whether the conditions at the time of citation would make theoccurrence of the hazard or injury reasonably likely. Any evidence or argumentssupporting such a contention are therefore irrelevant to the analysis and willnot be considered.

 

**1.         Step1 – A violation of a mandatory safety standard occurred.**

 

            Theexistence of a slit in the outer jacket of a trailing cable demonstrates afailure to adequately insulate and fully protect a power cable. I have found aviolation of this mandatory safety standard. *Seesupra* Section III.A.. This satisfiesthe first step of the Commission’s S&S analysis.

 

**2.         Step 2 –The violation was reasonably likely to result in miner contact with the damagedportion of the cable while energized, thereby exposing miners to an electricalcurrent.**

 

            Underthe second step in determining S&S, the violation must be reasonably likelyto cause the occurrence of the discrete safety hazard against which thestandard is directed. The second step is a two-part process: (1) determine thespecific hazard the standard is aimed at preventing; and (2) determine whethera reasonable likelihood exists that the hazard against which the mandatorystandard is directed will occur. *Newtown Energy, Inc.*, 38 FMSHRC 2033,2037 (Aug. 2013). This finding must be based on “the particular factssurrounding the violation.” *Northshore Mining Co.*, 38 FMSHRC 753, 757(Apr. 2016). 

 

**a.         Therecord supports a finding that miners were reasonably likely to contact anenergized, damaged cable.**

 

Thestandard in section 75.517 is aimed at preventing a miner from encountering powercables that are inadequately insulated or not fully protected. Thus, in this case,the specific hazard is a miner contacting the damaged portion of the CM-201trailing cable while the cable is energized.

            

            TheSecretary has established that the violation was reasonably likely to cause theoccurrence of this specific hazard. Inspector Tisdale, Grounds, and Garrett allprovided testimony that the trailing cable was handled by individual miners tomove it. Tr. 76, 78, 338, 443-45. While most movement of the cable wasconducted through the movement of the continuous miner, the testimony describessituations in which miners would move the trailing cable either with theirhands or feet. Tr. 76.

            

            InspectorTisdale testified that when the continuous miner is moved from one side of theentry to the other, the trailing cable follows it and moves into the center ofthe crosscut. Tr. 76. Often, in these situations miners will use their hands orfeet to reposition the trailing cable to one side of the entry, because ramcars must be allowed to entry to load coal. Tr. 76. Inspector Tisdale describesthis as “a normal practice that is done very often.” Tr. 77. 

 

Garrett,who had previously worked as a continuous miner operator in the mine, similarlytestified that there are times where the ram car operators would have to movethe cable with their hands when the cable is energized. Tr. 444-45. At times,miners also must lift the cable to allow ram cars to pass under it. Tr. 445. Helikewise admitted that there were probably times when he picked the cable upwith his hands and moved it out of the way. Tr. 443-44.

            

Thelocation of the splice on the cable was in an area that was specifically proneto being handled. Tr. 78. The damage to the insulation was found in the “cutloop” of the cable, a portion of the cable, usually at least 40 feet long, thatallows the continuous miner to move back and forth from the faces. Tr. 77. 

 

Asthe cut loop is moved by the continuous miner during its operation which maymove it into the entry, this portion would be handled often. Tr. 78. WhileGrounds testified that the cut loop is not handled more frequently than theremainder of the cable, Tr. 338, Inspector Whitfield testified that cut loopportion of the cable, which is where the damage was found, was often handled byminers in the course of their work.[9]Tr. 78. *But see* Tr. 428 (Garrett testifying it is “not a very frequentthing” for a continuous miner operator to handle the cut loop cable with theirhands).

 

            Theevidence therefore shows that miners routinely would move the cable to allowram cars to pass while the continuous miner was in operation and the powercable was energized. This handling of the cable in the cut loop could bring aminer’s hand into contact with the damaged portion of the cable while it wasenergized. I therefore find the violation reasonably likely to cause theoccurrence of the discrete safety hazard.

 

**b.         Respondentincorrectly relies on the Commission’s 2022 *Consol* decision to arguethat the extent of the damage was insufficient for exposure.**

 

Respondentargues that the discrete safety hazard should be determined to be the“potential electrical shock from stray electrical current at a level sufficientto cause an injury and contact with the cited 1⁄4” slit in the outer jacket ofCM-201’s shielded trailing cable.” Resp’t Br. at 10, *citing Consol Pa. CoalCo.*, 44 FMSHRC 37, 42 (Feb. 2022) (“*Consol Pa. Coal**II*”) (noting“[t]he hazard from a violation of section 75.517 is that it may cause anelectrical shock to a miner resulting from contact with an inadequatelyinsulated or not fully protected power cable”). In fixating on the “electricalshock”, the Respondent conflates the discrete hazard in second step of the *NewtownEnergy* Test with the injury inquiry in the third step. 

 

Moreover, in *Consol Pa. Coal**II*, theCommission stated that the “Step 2 issue [was] whetherthe violation was reasonably likely to expose a miner to an electrical current.”*Consol Pa. Coal II*, 44 FMSHRC**at 42. The Commission majorityrejected the S&S finding because it found that it was not reasonably likelythat a miner would contact the damaged portion of the cable, which was hungwith hooks secured to the roof or rib. *Id.* at 43-44. 

 

The Commission found no evidence that the cable could beeasily knocked to the floor. *Id.* at 43.**Therefore, it was notreasonably likely that a miner would grab the cable to hang it back up. *Id.*Additionally, the was no testimony as to whether or why a miner would be likelyto reach overhead and grab the feeder cable or whether a miner would be exposedduring feeder moves. *Id.*at 44. 

 

            Respondent’sreliance on *Consol Pa. Coal**II* is misplaced here because the CM-201power cable was not secured and hanging by hooks. The evidence here shows thatthe cable was usually lying on the ground and that miners would handle thecable regularly while working with the continuous miner. Unlike *Consol Pa.Coal II*, handling the cable could regularly and directly expose miners tothe damaged portion of an energized cable.

 

Respondentfailed to rebut testimony that the cable was likely to be handled in the “cutloop,” where the damage was located. Citation to *Consol Pa. Coal**II*is therefore inapposite here, other than to assert that the Secretary mustdemonstrate exposure to the hazard. The record here clearly shows that theSecretary met her burden as to reasonable likelihood that a miner could contactthe damaged portion of the cable while energized.

 

 

**3.         Step 3 –Contact with the damaged cable was reasonably likely to result in contact witha stray current escaping through the damaged area capable of injuring a miner.**

 

            Ihave already determined that miners were reasonably likely to contact thedamaged portion of cable. *See supra* Section III.C.2.a. The remaining issue with respectto reasonable likelihood of injury is whether stray current was reasonablylikely to escape from the trailing cable. 

 

Thecrux of Respondent’s argument against this likelihood is that the shieldedcable is inherently safe, and that the severity and location of the damage wasunlikely to allow the injury. Resp’t Br. at 22-23 (arguing miners were unlikelyto come into the damaged portion of the cable on the cut loop and that the cable’sshielding “[m]ade the [o]ccurrence of an [e]lectrical [s]hock [h]azard[u]nlikely”). However, I find the Secretary proved the injury was reasonablylikely to occur during continued, normal mining operations, and Respondentfailed to demonstrate elimination of the risk.

 

**a.         Therecord shows that stray current sufficient to cause injury could escape fromthe damaged cable.**

 

            Acable with an electrical defect, such as a phase/ground short-circuit, createsa danger that electricity will not follow its planned, intended path in acomplete, integrated circuit. When this occurs, other grounding mechanismsmight divert some of the free electrons to ground, but electric current followsthe path of least resistance to ground. Tr. 109-10. 

 

Wherethe amperage is high, as here, the current will flow to ground in proportion tothe paths made available to it. The copper ground wires have extremely lowresistance. Tr. 109. But a human body may provide a path to ground. *See*Tr. 109 (“electric current will vary depending on the resistance of the body inwhich the electrons are flowing”); Tr. 202 (among other factors, “[t]he currentflow of a human who came into contact with a fault in [a] cable would dependupon the resistance or dielectric strength of that person”). 

 

            Ifthe exterior insulation of the cable is damaged, electricity may escapecontainment and contact a miner handling the cable in the damaged area. Tr. 57.For this to happen, there must be a defect interrupting the normal powercircuitry, such as a failure of the insulation surrounding the phaseconductors. 

 

            Here,the penetration of the outer jacket is directly above one of the two largeuninsulated ground wires inside the cable. These cables are intended to providethe best path to ground. But a miner who contacts the cable where the damagecould allow the electricity inside to escape and contact the miner. Tr. 57. 

 

            Thepotential for this is greater if the cable is wet, and water is generally foundin the area where the CM-201 miner was operating. *See* Tr. 55 (notingwater is used to suppress dust when the continuous miner is in operation); Tr. 87(noting “wet and damp” conditions); Tr. 311 (“damp environment is apossibility”). If the miner was not wearing gloves, as witnesses noted sometimesoccurred (despite the operator’s requirement that they be worn at all times),and if the miner’s boots were damaged or the miner otherwise was not fullyinsulated against a path to ground, electricity could flow from the cable intothe miner Tr. 57. 

 

            Theamount of current needed to cause a fatal injury (as little as 100 milliamps) issignificantly lower than the current carried by the cable. MSHA’s witnessestestified credibly that a miner could be exposed to a risk of electric shock. Tr.60. MSHA need not establish that a fatal injury was reasonably likely; it onlyneeds to prove that there was a reasonable likelihood of a reasonably seriousinjury, which could include burns or other significant injuries. *See ConsolPa. Coal Co.*, 44 FMSHRC 182, 194 (March 2022) (ALJ) (finding electricalshock or buns to be a reasonably serious injury). 

 

Theoperator suggests that the cable’s integrity was confirmed by the Fluke testingdevice. Resp’t Br. at 15-16. This is a flawed premise. 

 

Asan initial matter, I disagree with the Secretary’s suggestion that the Fluketesting device was inadequate to the task of inspecting the electricalintegrity of the cable. As noted at Slip Op. at 6, the total current is dividedbetween the phase conductors and the total current present in the event of ashort-circuit would not exceed 1,000 volts. 

 

Therefore,I find the Fluke testing device, rated at 1,000 volts, was appropriate for the taskhere. In addition to the operator’s witnesses credibly testifying about thecapability of the device in these circumstances, *see*Tr. 348-356(Grounds testifying about testing the cable with the Fluke testing device),documentary evidence about the device and its testing parameters show that theFluke meter would have detected a short or other electrical problem in thecable, had one existed at the time of the test. *See* Ex. P-9.

 

That,though, is the problem. Having already determined that the interior inspectionconfirmed no present hazard of electric shock, the test results are essentiallyirrelevant. No witness or other evidence established that the device had anypredictive value, and the only relevant period for an S&S assessment inthis case is the future. The Fluke test therefore has no bearing on my decisionabout the potential for a hazard to arise in the course of continued normalmining operations. *See Consol Pa. Coal Co.*, 43 FMSHRC at 148 (statingS&S assumes continued normal mining operations, which suggests the relevantperiod is the future not the present). 

 

**b.         Respondentdid not effectively demonstrate that the presence of shielded cable eliminatesthe risk of an electrical injury.**

 

            Thepath to a serious injury here is admittedly not straight or direct. Lapses and failuresof equipment and judgment must occur. Respondent argues that the presence ofshielding around each inner conductor is an “inherent, engineered safetyfeature . . . that made the occurrence of an electrical shock hazard unlikely.”Resp’t Br. 23. It cited MSHA’s shielded cable requirement and discussion of thebenefits in support, but this analysis (1) fails to fully appreciate thelanguage of the proposed rule and (2) essentially attempts to make any cableviolation involving such shielding non-S&S.

 

            First,Respondent provides,

 

Metallic cableshielding . . . provide[s] *an engineering safeguard* for theprotection of miners, which is a passive or “built-in” defense against shockand electrocution through contact with cable voltages. The Agency recognizesthe advantage of engineering protection in some instances in addition toprocedural safeguards that can be defeated by carelessness, mistake, lack oftraining or tampering. Cables which are properly shielded and maintainedwould *not* expose miners to the consequences of such human factors.

 

*Id.* at24 (quoting *Electrical Safety Standards for Underground Coal Mines*, 54Fed. Reg. 50,062, 50,087 (Dec. 4, 1989)) (emphasis in original). The firstemphasized portion is in support of Respondent’s contention that the shieldingis not a redundant safety measure. *See id.* at 25 (citing Tr. 193). Evenaccepting that contention as true, a demonstration of damage to the shieldingis sufficient to present a hazard. This is supported by the second emphasizedportion. Respondent chose to highlight the word “not” to argue that shieldedcables would not expose miners to the consequences of human failures. It shouldhave instead noted the word “maintained.” The cables must be shielded *andmaintained* to not expose miners to the hazard.

 

            “Maintain,”in this context, is defined, “To care for (property) for purposes ofoperational productivity or appearance; to engage in *general repair andupkeep*.” *Maintain*, Black’sLaw Dictionary (11th ed. 2019) (emphasis added). Coal mine regulationsare replete with requirements to “maintain” equipment. *See e.g.*, 30C.F.R. §§ 75.503 (requirement to “maintain in permissible condition allelectric face equipment” required by other regulations in this subpart). 

 

Theevidence provided here showing damage and the likelihood of furtherdegradation, is sufficient to demonstrate that the cable has not been properlymaintained. *See*Tr. 131-32, 163, 311, 447. Since it is not shielded *andmaintained*, Respondent cannot point to this to effectively argue the cablewould not expose miners to the hazard.

 

            Respondentcontinues,

 

Although perfectcompliance with all of MSHA’s mandatory standards and the absence of humanerror are desirable, due to many varying circumstances, it would be unrealisticto assume such circumstances at all times. Therefore, the elimination of asmany factors contributing to electrical injuries as possible *throughshielding requirement* would lessen the risks to miners.

 

Resp’t Br. at 24(quoting 54 Fed. Reg. at 50,087) (emphasis in original). Note that the languagesays “lessen,” not “eliminate.” Taken together with the quoted language above,the proposed rule seems to contemplate that a maintained shielded cable would *lessen*the risks. But even if this type of cable presents a lesser risk of electricalinjury, Respondent has not demonstrated contact with an energized cable at thepoint of damage is not reasonably likely to result in injury.

 

            Respondentfurther notes, “Primarily, the use of shielded trailing cables would increasesafety for miners required to physically handle the cables by reducing thelikelihood of exposure to bare or short-circuited energized power conductors.” *Id.*(quoting 54 Fed. Reg. at 50,088). Yet, this simply provides for reducedlikelihood. 

 

            Finally,Respondent states, “If shielding had been present around the trailing cablepower conductors, the leakage current would have been conducted to ground bythe shielding, *eliminating* the shock hazard to the victim.” *Id.*(quoting 54 Fed. Reg. at 50,088) (emphasis in original). This statement was inresponse to discussion of a fatality where an unshielded trailing cable was“damaged to the point of exposing conductors, but continue[d] to functionproperly.” 54 Fed. Reg. at 50,088. The victim there was reportedly exposed toleakage current through “damaged and wet cable insulation.” *Id.*

 

            Thisinforms us that if a phase lead’s insulation is damaged (and wet), current willleak to the individual shielding and run to ground. But this statement does notaccount for damage to the shielding. As noted in Respondent’s first quotation,the cable must also be *maintained* properly. 

 

Respondent’sown witnesses acknowledged that it is possible the shielding will not providethe intended safety if it is damaged. Tr. 328. *See*Tr. 548 (assumingshielding was not damaged at time of the “nail test”[10]); Tr. 566(“If the shield were damaged to the point where it was spread more than aquarter inch apart, and the insulation had cracked all the way through, it’spossible at that time [such damage would increase the likelihood of beingshocked].”); Tr. 571–72 (“In order for [the current] to get past [theshielding] and come out the outer rubber coating, that shielding would have tohave a gap greater than this thickness [of the rubber outer jacket].”).

 

Therecord demonstrates damage to the shielding. *See* Tr. 43, 128, 323. Therefore,given the damage, and the likely further degradation during continued normaloperations, Respondent failed to demonstrate that the cable is inherently safeor even lessened the risk to miners.

 

            Respondentgoes on to assert the violation was not reasonably likely to cause a shockhazard even in a hypothetical worst-case scenario. Resp’t Br. at 26. It statesthat such a finding requires a litany of assumptions. That theory is refuted bya review of the actual conditions upon which the supposed “assumptions” rest: 

 

·      That something causes further degradation of the inner phase leadinsulation. Resp’t Br. at 26. It is permissible to assume that furtherdegradation will occur due to consistent dragging and bending in the harsh,underground environment during continued normal mining operations. *See*Tr. 131-32, 163, 311, 447. Even Respondent’s witnesses acknowledged that “it’snot going to heal itself,” Tr. 518, and I give no credence to contentions thatthe damage was not likely to get worse. Tr. 363, 390, 394, 424, 447–48. *Seecontra*Tr. at 162–63, 190, 300, 447.

·      That leaked current from damaged lead insulation contacts theshielding and flows to ground. Resp’t Br. at 26. This is an assumption inRespondent’s favor—that any stray current flows down the shielding rather thanescaping the cable jacket to injure a miner. But this itself assumes no damageto the shielding, as discussed above.

·      That ground fault protection fails to function. Resp’t Br. at 27.This is a redundant safety measure and therefore precedentially irrelevant. *SeeCumberland Coal Res., L.P. v. FMSHRC*, 717 F.3d 1020, 1029 (D.C. Cir. 2013).Also, the Secretary demonstrated that much less than the amperage required totrip the breaker would be sufficient to kill a miner, and a more potent chargecould do so in the split-second before the breaker tripped. *See* Tr. 168,171.[11]

·      That the trailing cable’s voltage limiting resistor fails tolimit the voltage of the circuit. Resp’t Br. at 27. This assumption fails topersuade for the same reason as the similarly-redundant ground-fault protection.

·      That the damage, including the heat and smoke created, would notbe detected. Resp’t Br. at 27. This assumed miner precaution and abatement,both of which are precedentially irrelevant. *See Eagle Nest, Inc.*, 14FMSHRC 1119, 1123 (July 1992); *see also Crimson Stone v. FMSHRC*, 198Fed. Appx. 846, 851 (11th Cir. 2006) (“Any assumptions about how andwhen [the equipment] would have been repaired do not alter the [S&S] natureof the violation.”); *Consolidation Coal Co.*, 35 FMSHRC 2326, 2337 (Aug.2013).

·      That something causes the damage (slit) to grow bigger. Resp’tBr. at 27. This is already addressed by the assumption of further degradationduring continued normal mining operations because witnesses testified crediblythat this would happen.

·      That a miner contacts the damaged portion simultaneously with theexistence of the fault. Resp’t Br. at 27. I have already found that miners arereasonably likely to contact this portion of the cable during continued normalmining operations. *See* Section *supra*III.C.2.a.

·      That a miner contacting the circuit is not wearing gloves, orthose gloves are wet. Resp’t Br. at 27. *See Sec’y ofLabor v. Consolidation Coal Co.*, 895 F.3d 113, 118 (D.C. Cir. 2018)(holding mitigating safety measures and expected miner precaution irrelevant toan S&S analysis); *see also Cumberland Coal Res., L.P. v. FMSHRC*,717 F.3d at 1028–29. Also note that while witnesses disagreed about the amountof water in the area where the continuous miner operated, there was no questionthat there was *some*water in the area, so the cable, and thus the glovesof any miner handling it, would be reasonably likely to become wet at somepoint.[12]

·      That a miner contacting the circuit is not wearing electricallyrated boots, or that those boots are damaged. Resp’t Br. at 27. Boots, likegloves as explained above, are irrelevant to whether an injury is likely tooccur in an S&S analysis, because they shift the analysis from theengineering controls required by the mandatory standard to miner precaution andredundant safety measures. *See Spartan Mining Co.*, 30 FMSHRC at 707(noting Congress’ concern for particular dangers posed by damage to trailingcables and dismissing argument that circuit breaker – which did not preventfatal injury in *Spartan* – or other redundant safety measures aseffective prevention against reasonably likely injury from damaged cable).

 

            Respondentfurther asserted that, given the assumed worst-case scenario, a miner wouldstill only be exposed to 5 milliamps—sufficient to create only muscle spasms. *See*Resp’t Br. at 27 (citing Tr. 528–35).[13]Respondent pointed to an absence of evidence of past incidence of shock fromhandling shielded cables and cited a 1985 ALJ decision regarding alleged cabledamage to argue that the S&S citation should be vacated. *Id.* at 28(citing *Arch of Ill., Inc.*, 7 FMSHRC 56, 88 (Jan. 1985) (ALJ)(“[R]espondent’s evidence and testimony establishes that the construction andshielding of the cables provided more than adequate protection against anydamage from the rubber-tired equipment which ran over them.”). This case is nothelpful to Respondent here because it involves a different standard anddistinguishable factual findings regarding cable damage.

 

            In *Archof Illinois, Inc.*, the two citations involved a failure to adequatelyprotect trailing cables from damage by mobile equipment—30 C.F.R. § 77.604. 7FMSHRC at 58–59, 61, 88. The judge’s decision was based on the fact that anydamage was unlikely from the rubber-tired vehicles shown to have run over, orlikely to run over, the cable. *Id.* at 88. 

 

Thestandard at issue here is section 75.517, which involves a failure toadequately insulate a trailing cable. The standard in *Arch of Illinois, Inc.*is therefore based on exposure to possible damage from vehicles, whereas thestandard here is based on actual damage to the cable.

 

            Importantly,the record in *Arch of Illinois, Inc.* demonstrated “no signs of anyinternal or electrical damages.” *Id.* at 86–87. The judge’s finding thatdamage from the types of vehicles present was unlikely also noted that “theevidence establishes that no damages occurred.” *Id.* at 88. 

Thefacts here are demonstrably different. Here, there was damage to the cable, andthe type of vehicle was acknowledged to be capable of damaging the cable, *see*Tr. 330–31 (demonstrating that a continuous miner had “trammed over its owncable” and caused damage in the past); *see also* Ex. PP (citation for anincident where another continuous miner cable at Lively Grove Mine was found “withtire tracks on it for approximately 20 feet and had been pushed into theground” after being run over by another type of vehicle), unlike therubber-tired vehicles in *Arch of Illinois, Inc.*

 

            Additionally,Respondent’s own expert, after citing the “nail test” to state that minimalamperage would flow through a miner, stated that he “certainly would not” graba nail driven into a live cable “[u]nless [he] was feeling extremely daring,”Tr, at 549-50. He later qualified that he “would not take a nail undergroundand advise someone to grab [it].” Tr. 551. This seems to at least acknowledgethat the conditions underground might make the risk of current escaping fromshielded cable different than in a controlled lab setting.

 

            Evenaccepting the validity of the “nail test” —although conducted at a lowercurrent and with undamaged shielding—the testimony on the record demonstratesthat the risk of injury from escaping electrical current is still present,especially in underground mining conditions. The Secretary has shown likelyinjury from contact with electrical current, and this Court acknowledges thedangers of serious injury from contact with inadequately protected cables. *SeeF & F Mendisco Mining Co.*, 4 FMSHRC 897, 898 (May 1982) (ALJ)(involving the death of a miner from contact with a bad splice while climbingdown into a sump). Respondent’s proffered evidence is insufficient to counterthe obvious grave danger of electrical injuries.

 

**c.         Respondentdid not rebut evidence demonstrating that the severity and location of thedamage made current leakage reasonably likely.**

 

            Respondent’switnesses testified that the severity was insufficient to permit currentleakage, and that the location of the damage did not provide a pathway for suchleakage. Respondent’s expert, Christian, testified, “If the shield were damagedto the point where it was spread more than a quarter inch apart and theinsulation had cracked all the way through, it’s possible at that time [thatthe likelihood of shock would be increased].” Tr. 566.[14] He laterspecified that such an increase created by a quarter-inch damage would bepresent if the holes—those in the shielding and that in the outer jacket—werelined up. Tr. 581.

BryceJones, Respondent’s maintenance technician, testified that the cracked phaseinsulation was a half-inch away from the outer cable damage. Tr. 365. Garrett,Respondent’s “dust tag,”[15]testified that the hole in the outer jacket was over the ground lead. Tr. 417.[16]

 

            Respondenttherefore attempted to demonstrate that the damage would have to be greater,and the location would have to be directly over a phase lead. These assertionsdirectly contradict both the requirement to assume continued normal miningoperation, the spirit of the Commission’s *U.S. Steel* decision, and thenature of electrical current if the insulation fails to contain the currentwithin the phase leads.

 

            Icannot assume that the damage would have been found and remedied, and I havealready found that further degradation of the existing damage—to the outerjacket, the shielding, and phase lead insulation—is reasonably likely duringcontinued operations. Respondent’s proffered testimony therefore does notadequately challenge a demonstration that the violation is reasonably likely todegrade and expose miners to contact with inadequately insulated cable.

 

            Acknowledgingthe significant risks from electricity and damaged cables, the Commission in *U.S.*Steel affirmed a finding that “both the outer and inner layers ofinsulation provided important protection against electrical shock.” 6 FMSHRC at1575. Respondent here would have the Commission believe that the existence ofindividual lead shielding negates the likelihood of such a contemplated injury.

 

            Ifind, however, that the analysis in *U.S. Steel* continues to be perfectlyapplicable. In that case, there was no visible damage to the live power wireinsulation, and both parties agreed that “because the power wires remainedindividually insulated at the time of inspection there was no immediate dangerof electrical shock even if a miner should inadvertently grab the cable.” *Id.*at 1573. Yet, the Commission still found that the existence of outer jacketdamage and likely degradation from mining operations was sufficient to justifythe S&S finding. *Id.* at 1575.

 

            Acceptingthe existence of a third layer of protection, the *U.S. Steel* logic stillends in a finding that the “outer and inner layers [both individual phaseinsulation and shielding]” provide the contemplated protection. *Id.* Andif I assume continued degradation due to the “relevant dynamics of the miningenvironment or processes,” *id.* at 1574, then demonstrated damage to theouter jacket, the shielding, and the phase insulation is sufficient to supportan S&S finding.

 

**d.         Respondent’sargument that the standard use of safety equipment precludes an S&S findingruns counter to Commission and Circuit Court precedent and is contrary torecord evidence demonstrating less than full compliance and likely equipmentdegradation.**

 

            Respondentdirectly challenges Commission and Circuit Court precedent regarding assumedabatement and redundant safety measures. *See* Resp’t Br. at 18, 18 n.1,29–30. It first argues that it is “just conjecture, speculation, and worst-casehypotheticals,” *id.* at 18, to assume that normal practices that are partof continued normal mining operations would not occur, and that a finding ofviolation would be error. *Id.* at 18 n.1.

 

            Respondentpoints out that it provided evidence of preoperational checks, weeklypermissibility checks, and examples of identified and corrected cable damage. *Id.*at 18 n.1. But this argument is foreclosed by law. Simply put, the Commissionwill not assume abatement of the violation in an S&S analysis, unless theabatement is underway when the violation is discovered. *Mach Mining, LLC,*40FMSHRC 1, 6 (Jan. 2018), *aff’d*, 748 Fed. Appx. 357, No. 2019 WL275718 (D.C. Cir. 2019) (internal citations omitted). 

** **

Therewas no active abatement here. Respondent therefore may not rely on suchevidence to argue that a reasonable likelihood of discovery would have made it unlikelythat the defect would cause the hazard to materialize.

 

            Next,it argues that normal practices—e.g., all miners always wearing gloves andboots while underground—should be considered part of continued normal miningoperations. Resp’t Br. at 29–30. As with an assumption of abatement, theCommission will not consider such circumstances (or practices) external to aviolation to reduce the likelihood that harm will occur. 

 

Iaccept that the shielding is not a redundant safety measure but an integratedpart of the protection and insulation provided in accordance with the standard.But the use of personal protective equipment (“PPE”) is external to, and thusnot relevant in considering, the hazard created by the operator’snon-compliance. *See Cumberland Coal Res., L.P. v. FMSHRC,* 717 F.3d at 1029(D.C. Cir. 2013) (*citing Sec’y of Labor v. FMSHRC*, 111 F.3d 913, 917(D.C. Cir. 1997) (“By focusing the decisionmaker's attention on ‘suchviolation’ and its ‘nature,’ Congress has plainly excluded consideration ofsurrounding conditions that do not violate health and safety standards.”). Evenif I were to accept the use of rated gloves and boots in an S&S analysis,Respondent’s own witnesses failed to demonstrate a reasonable likelihood of perfectuse and integrity of such protection. 

 

Respondentwent to great lengths to develop testimony that gloves and boots are alwaysused underground, and that it makes them available to all miners. Tr. 103–04,108, 292, 285–96, 369. First, Grounds, Respondent’s compliance manager,acknowledged, “I can’t say that it’s 100 percent compliant, but it isinformation that is shared with our employees, and I do believe that themajority of employees, if not -- if not most or all do comply.” Tr. 290. Therefore,the risk of contacting a damaged cable with unprotected hands or feet is noteliminated by protective equipment used by miners.

 

            Next,the Secretary effectively rebutted the availability of fully protective bootsand protective gloves at all times. Grounds acknowledged that he did not knowthe dielectric rating of the gloves provided in the free vending machine. Tr. 314.He further admitted there was no way to tell if miners’ gloves would always bedry during continued operations. Tr. 313. While the mine has a boot policy thatseems designed to ensure miners will have safe, protective footwear, the policyonly allows for reimbursement of one pair per year. Tr. 315-16; Ex. GG. Cut ordamaged boots could be compromised, though the mine does have rubber bootsavailable. Tr. 314–17.

 

            BothJones and Whitfield conceded that damaged or wet gloves could happen at anytime. Tr. 235, 395. Inspector Tisdale acknowledged the PPE policy, but hereferenced an incident at the mine where a supervisor put a bare hand on acable while talking to an MSHA inspector. Tr. 104.

 

            Evenconsidering redundant safety measures, Respondent thus did not demonstrate thatthe cited PPE was always worn, was always available, or that it continuouslymaintained the integrity necessary to provide the expected protection. Respondent’sassertions in this vein do not reduce the likelihood of injury.

 

**4.         Step 4 – The injury fromexposure to stray current from the damaged CM-201 cable was reasonably likelyto be of a reasonably serious nature**

 

            Thefinal step in determining whether the violation was significant and substantialis whether there is a reasonable likelihood that the injury in question is of areasonably serious nature.

 

            Theinjury from electrical shock is directly related to the amount of current towhich a person is exposed. Inspector Tisdale and Special Investigator Whitfieldtestified that a fatal injury could result from exposure to as little as 100milliamps of electricity. Tr. 59-60, 167-68. This testimony was essentiallyundisputed. *See*Tr. 534 (Respondent’s expert Christian stating thesame).

 

TheCM-201 cable is a 995-volt cable with a current of up to 200 amps coursingthrough it when it is energized. Tr. 59-60. This is well above the lethal limit.However, the system is equipped with a fault relay that triggers at six amps orseven amps. Tr. 168. If the insulation on a phase conductor is breached,electricity would flow from the phase to the shielding and trip the main faultrelay within milliseconds, cutting of the power. *See* Tr. 59, 523. 

 

Theevidence demonstrates that it is possible for a miner to be shocked with alethal current of electricity, even if the circuit breaker functioned properly.Under one such scenario, the inner phase insulation would have to be completelybreached by subsequent stress or damage, at the precise moment when a miner ishandling the cable and in contact with the splice. 

 

Undera second scenario, it is alternatively possible that the conductor’s insulationmight be degraded to permit a current less than six amps to escape theconductor. I infer from Christian’s testimony that as the insulation would wearand become thinner, it could begin to allow leakage of some current from thephase conductor. Gradual failure of the insulation, as stress and wear reducedits thickness, would progressively allow more current to leak from theinsulation. 

 

Evenwithout a complete breach, wear to the thickness of the inner conductor’sinsulation could cause the leaking electricity to increase above the potentiallyfatal 100 milliamps, before reaching the six or seven amps necessary to triggerthe circuit breaker. In that range, the breaker would not be triggered, but aminer holding the cable at the damaged area could be exposed to a serious, andperhaps fatal, electric current. 

 

Sixamps is more than 60 times the electric current sufficient to cause a fatality.Under these circumstances, it is therefore reasonably likely that injury fromexposure to the current could range from serious to fatal.

** **

Respondentargues that the electrical current that could escape the hole in the outerjacket is insufficient to cause serious injury. Based on the results of the “nailtest”, Christian analyzed and estimated the maximum amount of current a personwould be exposed to under the conditions present in this matter. Tr. 520-39. 

 

Hetestified that even assuming a worst-case scenario where a miner comes intocontact with the cited 1/4 inch slit in the cable’s outer jacket at the precisemoment a fault occurs inside the cable, any stray current that might haveleaked out would have been no more than approximately five milliamps. Tr. 533-534.This would be enough to cause a tingling sensation but not enough to cause aninjury or a reasonably serious nature. Tr. 534.

 

AsI have discussed above — *see supra*Section III.C.3.b. — the testimony on the recorddemonstrates that the risk of injury from escaping electrical current is stillpresent, especially in underground mining conditions. Respondent’s own expert,after citing the “nail test” as support for his belief that minimal amperagewould flow through a miner, stated that he would not personally risk touchingan energized cable under the test conditions, nor would he advise anyone tograb the cable. Tr. 549-51. This seems to at least acknowledge that theconditions underground might make the risk of current escaping from shieldedcable different than in a controlled lab setting.

 

Ifind that the results of the “nail test” cannot be reliably applied to thefacts of this case. The laboratory conditions of the test are not analogous tothe conditions of a cable being dragged across the floor of an underground coalmine. Moreover, the “nail test” fails to consider any damage to the wireshielding, but assumes the shielding is fully intact. The shielding inside the CM-201cable was damaged, and thus was subject to further degradation as the cable wasused.

 

Toestablish S&S, the Secretary does not need to prove the reasonablelikelihood of a fatal injury, but only reasonably serious injury, which couldinclude burns or severe electric shock. *See**Consol Pa. Coal Co.*,44 FMSHRC at 194 (finding the third and fourth steps of the S&S analysiswas met when a damaged cable was “reasonably likely to cause electrocution andinjuries such as electrical shock, burns, or death”). Therefore, given the highamount of current in the CM-201 cable and that the circuit break only triggersat six amps, which is well above the 100 milliamps threshold for a fatalinjury, I find that Secretary has established that exposure to stray currentfrom a damaged cable was reasonably likely to be of a reasonably seriousnature.

 

TheCommission has upheld an S&S violation where only the outer cable has beenshown to have been damaged. *See Harlan Cumberland Coal Co.*, 20 FMSHRC1275, 1288 (Dec. 1988) (affirming ALJ’s crediting inspector’s testimony aboutinjury and determination that outer damage to insulation was sufficient becauseof potential “invisible” damage to insulation around inner conductors andnoting that “even a pinhole-sized breach can conduct enough current toelectrocute a miner.”). The Commission in *Harlan* further noted that “[t]hejudge’s conclusion is bolstered by the presence of water and the high frequencywith which the cable was manually handled during normal mining operations.” *Id.*

 

I therefore find that the violation here issignificant and substantial, based on similar evidence. Respondents violatedthe mandatory safety standard of 30 C.F.R. § 75.517. The violation wasreasonably likely to result in a miner coming into contact with the damagedportion of the cable while energized.  

 

This contact with the damaged cable isreasonably likely to result in a stray current capable of injuring a miner escapingthrough the damaged area. The resulting injury is reasonably likely to be ofsufficient amperage to cause a serious electric shock or electrocution. This conclusionof a risk of reasonably serious injury is increased by the fact that, like in *Harlan*,the cable in question is handled by miners in the presence of water andsometimes wet and damp conditions. Therefore, I affirm the Secretary’s S&Sfinding. 

 

**D.        Penalty**

 

While this is an S&S violation, I haveheld that the operator’s negligence is not as severe as the Secretary alleges. Furthermore,the damage to the cable was minimal. Aggravating its diminishment of thecable’s insulation could require a serious subsequent injury or a prolongedperiod of repetitive stress. 

 

While redundant safety measures and minerprecaution may not negate an S&S finding, I do credit the operator’sproactive safety measures here. The operator provides gloves to miners. Thesegloves are not dielectrically rated, but witnesses said they could provide someprotection if not wet or damaged. Additionally, the operator pays for a pair ofboots for each miner, once a year, and requires that safety equipment be worn. 

 

Not crediting the operator for thesemeasures ignores their contribution to health and safety at the mine. While theviolation is serious enough to compel its correction before any possibility ofharm could arise, a reasonable person would understand that these measures maygreatly reduce the hazard by making it much less likely that a miner couldprovide a path to ground for uncontrolled electrical current. 

 

The size of the operator and its violationhistory are essentially uncontested. Tr. 471-73; Ex. P-3. The operator hasstipulated that the penalty proposed by the Secretary would not interfere withits ability to remain in business, and the Secretary’s proposed penaltycredited the operator with rapid good-faith abatement of the citation. Tr. 471-73;Ex. C. Considering the gravity posed by the hazard and the and lesser negligencesupported by the record, and all the factors set forth in Section 110(i) of theAct, I assess a penalty of $1,800. 

** **

**IV.         ****CONCLUSION**

 

For the reasons set forth above, I findthat the operator violated 30 C.F.R. §75.517 as a result of its low negligence andthat the violation was S&S. The operator is **ORDERED** to pay $1,800.00within 30 days of this decision.[17]

 

 

 

 

/s/ Michael G. Young

Michael G. Young

                                                            AdministrativeLaw Judge

 

 

Distribution: 

 

Edward V. Hartman, Esq., Office of theSolicitor, U.S. Department of Labor, 230 S. Dearborn, Rm. 844, Chicago, IL60604, hartman.edward.v@dol.gov  

 

Jason W. Hardin, Esq., FABIAN VANCOTT, 215S. State Street, Suite 1200, Salt Lake City, UT 84111, jhardin@fabianvancott.com

 

Artemis D. Vamianakis, Esq., FABIANVANCOTT, 215 S. State Street, Suite 1200, Salt Lake City, UT 84111, avamianakis@fabianvancott.com

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[1] The cable at issue in this case was a NexansAmerCable Tiger Brand 36-505 Type SHD-CGC 3/C, 2,000 Volts cable. Tr. 253; Ex.O.

 

[2] There was a minor dispute about whether the use ofthe screwdriver may have further damaged the cable and whether Garrett hadasked Inspector Tisdale not to use the screwdriver to clean the damaged area onthis occasion. *See* Tr. 99, 101, 413; Ex. G. A screwdriver represented assubstantially identical to the one used during the inspection was used as ademonstrative exhibit. The entire length of the handle and blade wasapproximately 4” and the blade appeared to be less than 1/8” in diameter. Giventhe size of the screwdriver, the durability of the jacket, and the very minordamage to the outer jacket, I find that Inspector Tisdale could not havedamaged the jacket by probing it and that the dispute about using thescrewdriver is immaterial to these proceedings. 

[3] Counsel for the Secretary rejected thischaracterization, noting that the interior of the cable obviously had not beenexposed to weather. Tr. 393-94, 362. Cody Christian, Respondent’s expert,replied that this is what the cracks looked like. Tr. 490. I credit hischaracterization of the appearance of the cracks, which are fine, web-likecracks not visible unless the insulation is flexed. 

[4] The operatorquestioned the assessment of the damage and claims that Inspector Tisdaleeffectively changed his testimony by not including an assessment of the damagedshielding in his notes or the citation. Resp’t Br. at 7. The operator furtherargued that the process of removing the outer jacket from the cable isinherently destructive – a witness described it as “violent” – and thatwitnesses testified that they would often find red fibers from the cover, andoccasionally shielding material, embedded in the outer jacket. Tr. 128-29, 415,418-19. *See also* P-7 (image of the cable showing fibers embedded in theouter jacket of the cable).

            

InspectorTisdale, for his part, testified credibly about the deformation of the cable,and he described the effect that such pressure can have on the integrity of thecable. He said that the removal of the cover required finesse, not force. Tr. 589.The miners and the inspector had removed the outer jackets of cables numeroustimes, and I find that the witnesses all had an appropriate level of experiencewith the process. I find that the Secretary has established that the damagemore likely than not occurred before the outer jacket was removed. 

 

[5] The examination record of the repair shows that itwas performed on the same day as the inspection. Ex. U. Neither party attachedany significance to this fact, so I find that it is merely a coincidence. 

[6] The device used in this case was manufactured byFluke. Tr. 351.

 

[7] No witness testified to a scenario that wouldimplicate all three phase cables or a potential voltage greater than 1,000. 

 

[8] The docket also originally contained Citation No.9037896. Respondent withdrew its contest of Citation No. 9037896 prior to thehearing. Notice of Withdrawal of Contest of Citation 9037896 (Aug. 18, 2022). 

[9] Respondent also contends that miners did not contactthe damaged portion of the cable because miners were trained always to weargloves. Tr. 289; Ex. FF. While is it the policy of the mine for gloves to beworn at all times, the evidence indicates that gloves were not always worn. Tr.62. 

[10] The “nail test” discussed is a test conducted by thePenn State Mine Electrical Research Laboratory as part of a series ofinvestigations to examine the feasibility of shielding low-voltage trailingcables in underground coal mines. Ex. DD at Bates label -01070. Theseinvestigations were published 1979 in the U.S. Department of Interior, Bureauof Mines Information Circular titled “Mine Power Systems Research (In FourParts) 1. Trailing Cables.” *Id.* at Bates label -0167-68. The nail testinvolved driving a six-penny coated nail repeatedly into an energized SH-Dshielded cable. *Id.*at Bates label -01074. The nail test was describedperformed as follows:

 

An additional electrical test was devised to show theeffects caused by a person using a metal object to penetrate an energizedcable. To duplicate worst-case conditions, the ground-current-limiting resistorwas eliminated from the circuit so that the current through the shield would beallowed to rise above 25 amperes. 

 

A 218-volt ac source was used to power twoseries-connected 100-watt electrical lights. One wire of the circuit was routedthrough a sample of flat SH-D cable from the test site. The six-penny nail wasconnected to a grounded 1,000-ohm resistor to simulate a worker, also underworst-case conditions. After the cable was energized, a remotely operatedapparatus drove the nail into the cable. 

 

Ten trials were performed and in 9 out of 10, thecurrent flowing through the shield was sufficient to trip a 20-ampere circuitbreaker in approximately 5 cycles or 83 milliseconds. The test results werevery repetitive for these nine trials; identical current levels were observedin each. Current flow through the worker was a harmless 2 milliamperes, whilecurrent flow through the shield was 1,800 milliamperes. During the nine trials,the shield sustained no noticeable damage. However, during one attempt, thebreaker was not activated because the shield around the nail penetration areawas destroyed. 

 

*Id.* at Bates label -01075.*See also*Resp’t Br. at27 n.3 (describing the “nail test”); Tr. 206, 527-532 (discussing the “nail test”).

[11] Cody Christian testified that electrical flow wouldmost likely contact the shielding, flow to the ground fault relay, and trip thebreaker, and that such happens in milliseconds. *See* Tr. 521–22. Thisseems intended to enable Respondent to make the argument that injury isunlikely because a miner would have to contact the damaged portion of the cableat the exact moment of fault, and that the shielding would prevent the flow through the miner. *See* Resp’t Br. 31–32. I alreadyfound that damaged shielding is not likely to provide such protection. *See*Slip Op. at 17. I have also found that it is reasonably likely that a miner couldbe holding or touching the damaged area in the course of normal operations. *Seesupra* Section III.C.2.a. That such a fault would happen quickly doesnot effectively challenge the reasonable likelihood of injury, because if theminer is holding the damaged area of the cable at that exact moment, a seriousor fatal injury could occur.

 

[12] There is no need to make too much of this fact, giventhat the gloves would be a redundant safety measure depending on minerprecaution – neither of which is legally cognizant in this context, but thegloves provided by the operator do not have an electrical rating. *See*Tr. 314 (the operator’s compliance manager noting the gloves provided to minersdo not have a manufacturer-listed electrical rating); Ex. O. (specificationsheet for PosiGrip Gloves Style 720DGU provided by the operator listing noelectrical rating).

 

[13] I note that Respondent included this argument in Step2—analysis of likelihood of occurrence of the hazard. As I have stated that thehazard is miner contact with an energized, damaged cable, discussion of theamount of available amperage to which a miner is likely to be exposed relatesto the likelihood of injury caused by such contact. Here, Respondent assertsthe likely amperage is only sufficient to cause muscle spasms, and that it isunlikely to cause injury—e.g., shock, burns, or electrocution.

[14] He later specified, “In order for [electricity] toget past the shielding and come out the outer rubber coating, that shieldingwould have to have a gap greater than this thickness [of the rubber outerjacket].” *Id.* at 571–72.

 

[15] As “dust tag,” Garrett was responsible for dealingwith dust samples taken at the mine. Resp’t Br. at 4 (citing Tr. 403-04). 

 

[16] The actual jacket provided as an exhibit shows theimpression made by the uninsulated cable where the hole pierced the jacket, so thisfact is beyond dispute. *See* Ex. P-7.

[17] Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the Treasury,at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment (check or money order)to: U.S. Department of Treasury, Mine Safety and Health Administration, P.O. Box790390, St. Louis, MO 63179-0390.Please include Docket and A.C. Numbers.