By Ellen Smith
A small crushed stone operation had three penalties for electrical violations significantly reduced by a Review Commission judge from $77,600 to $18,000 after the operator was able to show that MSHA had inspected the mine’s electrical panels since 1999, and not cited the company for the conditions found in the recent inspection.
However, MSHA’s S&S findings, along with an imminent danger order were upheld. Sierra Rock Products challenged two S&S and unwarrantable failure orders where circuit breakers were in close proximity to energized conductors.
During a May 2010 inspection, MSHA found the company would de-energize conveyors by opening an electrical panel door and throwing the breaker switches. While there were switches on the panel door, they were not operable. According to MSHA, Sierra Rock violated §56.120402 because electrical components inside two separate electrical panels that were located outside were not “guarded or protected by location when needing to rack out the breakers for the system.”
The breaker for the #1 and #2 conveyors was located inside the panel where the owner or his son would open the panel door to access the breaker, exposing them to a hazard of inadvertently contacting live 480-volt electrical connections. In one panel there was 6 in. separating breaker switches from the electrified components, and in the second panel there was 12 in. of separation.
MSHA issued a penalty of $12,000 for one panel, and $13,600 for the violation on the second panel, which MSHA found a day later. Parties admitted that these conditions had existed for 10 to 15 years, and the company argued that it did not have fair notice. The company also argued that §56.12040 does not indicate how far operating controls must be from electrified components.
In upholding the first two violations of §56.12040, ALJ Richard Manning said although the two owners were aware of the live connections when opening the panel box, “unpredictable events occur. “
Under continued mining operations, ALJ Manning believed it was highly likely that someone would be seriously injured or even killed by accidently contacting a live connection when throwing the switch inside the electrical panel. He also modified the gravity of the violation from “reasonably likely” to “highly likely.” The violations, however, were not due to an unwarrantable failure to comply. The fact that they had not been cited led them to believe that these procedures were safe and legal, and they did not demonstrate aggravated conduct.
The third violation involved an imminent danger order. In this case, the owner was asked to de-energize the second panel, and the MSHA inspector reminded him that the panel should be de-energized before opening the panel door. At this point, the owner became angry and aggressively reached inside the panel and flipped the breaker switches without de-energizing the panel. His actions led MSHA to issue an imminent danger order and an order for an alleged violation of §56.12017 with a subsequent fine of $52,600.
In this order, the company said there was no violation of the standard because work was no being done on the panel. Sierra Rock said the owner was simply demonstrating the mine’s normal lock-out procedures. However, ALJ Manning said using the circuit breakers inside the electrical panel to de-energize the circuits for the stacker and bypass conveyor circuits amounted to “work done on such circuits.” Using the breakers to open the circuits controlling the stacker and bypass conveyor was the first step in starting work. That first step constituted work on the circuits, even if the circuits were opened and locked out to shut down the stacker or the conveyor for mechanical maintenance.
Manning also ruled that the MSHA inspector did not abuse his discretion when he issued the imminent danger order.
Sierra Rock Products Inc., 1/8/2013, Docket Nos. WEST 2010-1390-RM et al. (ALJ Richard Manning).