PENN 2019-8 (Dec. 30, 2019) (ALJ Lewis)

During a spot inspection for methane, an MSHA inspector noticed an energized cable going to a feeder and observed damage to the cable. After power was disconnected, the MSHA inspector slid his hands down the cable and felt deformities in two locations. The first had no visible damage to the inner conductors while the second location showed signs of damage to the inner conductors. At the time of the inspection, there were ram cars, loaded with coal, passing through the area, miners in the general vicinity of the cable, and the area was considered “wet.” The inspector believed because the ram coals were loaded with coal the cable could be struck, requiring miners to get out of the car to handle the cable.

At hearing, the operator argued the MSHA inspector twisted or manipulated the cable at the second location damaging the inner conductor. The MSHA inspector denied this assertion despite the fact the operator’s witness contended the MSHA inspector used a small screwdriver to clean out the hole.

ALJ Lewis found a violation of 30 C.F.R. Section 75.517 because of the damage in two locations in the cable. In so doing, ALJ Lewis found no persuasive evidence the MSHA inspector actually damaged the cable by twisting it or using a screwdriver to clean out the hole. ALJ Lewis also found the violation to be S&S after applying the Mathies/Newtown S&S analysis. First, the secretary established a violation of a mandatory safety standard. Second, the violation was a reasonable likelihood of the occurrence of the hazard against which the mandatory safety standard was directed in that the area where the cable was located was frequently traveled by and accessible to miners. Third, based on the particular facts surrounding the violation, it was reasonably likely to result in an injury. Finally, any resultant injury would likely to be reasonably serious. Importantly, ALJ Lewis did not consider the mine operator’s redundant safety features, including the sensitive ground fault, in finding an S&S violation. Likewise, ALJ Lewis found that whether miners would exercise caution is not a relevant factor in the S&S analysis.