Case Sent Back to Judge For Unwarrantable Failure Findings

A 104(d) order modified to a 104(a) citation was sent back to ALJ Richard Manning, after he based his findings on a separate order issued under another standard.

The case stems from a May 2010, inspection at Sierra Rock Products, a small seven-person operation in Tuolumne County, Calif.

During the inspection, the owner’s son was asked to demonstrate his method for “locking out” an outdoor electrical panel. He unlocked the panel door, threw the breaker switch to de-energize the panel, and then closed and re-padlocked the door.

The MSHA inspector said that the breaker switches were only 6 in. away from exposed, 480-volt connectors, and that anyone de-energizing the electrical system in this manner would be exposed to shock hazards. The inspector said it was an S&S and unwarrantable failure violation of §56.12040, which requires that “[o]perating controls shall be installed so that they can be operated without danger of contact with energized conductors.”

The inspector listed the violation as an unwarrantable failure since the violation had existed for some time. The violation was abated by installing a breaker switch on the outside of the panel door.

Next Day

The next day the owner voluntarily showed the inspector another panel, set up with the same configuration. The owner explained that it had been inspected on previous occasions, and in fact, an inspector had terminated a citation without requiring changes, so the owner believed the panel was in compliance.

After checking with MSHA headquarters, the inspector said he was going to issue an order for that panel as well. The inspector asked the owner to de-energize the panel so it could be opened, and the violative condition documented. The owner became angry, aggressively opened the panel door, and flipped the breakers.
The inspector then issued a second S&S and unwarrantable failure order for a violation of §56.12040, and issued a second order under §56.12017, which requires that power circuits “shall be de-energized before work is done on such circuits unless hot-line tools are used.” MSHA assessed a $52,600 penalty, where the owner deliberately flipped the breakers.

Judge Manning affirmed the S&S findings, but reduced the negligence from high to moderate, and removed the unwarrantable failure designation for the first violation under §56.12040, and imposed a $6,000 penalty rather than MSHA’s proposed $12,900 penalty. In doing so, he noted MSHA’s lack of previous enforcement with regard to the panel configuration, the length of time the violation existed, and said the company had not been placed on notice that greater efforts were necessary for compliance.

Sierra Rock had not demonstrated the aggravated conduct necessary for an unwarrantable failure finding.

Regarding the second order under §56.12017, Judge Manning also affirmed the S&S finding, and reduced the negligence and penalty “for the same reasons as discussed above,” and reduced MSHA’s proposed penalty of $52,600 to $6,000.

It was with this second order that the Commission said a separate analysis is required regarding the unwarrantable failure charge and reduction in negligence. “Separate unwarrantability analyses are required, even for factually related violations where the violations involved mandatory standards that impose separate and distinct duties on an operator.

“Facts that were given great weight by the Judge with respect to the configuration violation, such as MSHA’s lack of enforcement, do not have the same relevance with respect to a failure to deenergize before working on circuits,” the Commission said, adding “an articulated decision is essential to the facilitation of judicial review.”

Willful Misconduct

The Secretary argued that the record compelled a finding of unwarrantable failure, because of the owner’s willful misconduct of flipping the breakers, and that this issue should not be remanded to the ALJ, but the Commission disagreed.

“While the record unquestionably establishes that Hatler willfully acted contrary to the inspector’s instructions, the issue is whether Hatler willfully or recklessly acted contrary to the cited standard. The record does not conclusively establish whether the instructions put Sierra Rock on notice that de-energizing the panel via the internal breaker switches violated §56.12017,” said the Commission.

On remand, the Commission said that Judge Manning should address: “the impact, if any, of the difference in the cited standards on the various unwarrantability factors; the impact, if any, of the morning interaction between Hatler and the inspector regarding the M CC panel, and the inspector’s instructions to de-energize before opening the panel; and whether Sierra Rock had an objectively reasonable belief, based on the above facts and circumstances, that its conduct was in compliance with the cited standard. This matter is also remanded for reconsideration of the degree of negligence attributable to Sierra Rock with respect to the conduct at issue in the order.”

SIERRA ROCK PRODUCTS, INC., 1/13/2015, FMSHRC No. WEST 2010-1390-RM; 22 MSHN D-34

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