By Ellen Smith
Extension cords, power cords and cables are subject to continuity and resistance testing under Mine Safety and Health Administration (MSHA) regulations, according to an Aug. 12 ruling of the U.S. Court of Appeals for the D.C. Circuit.
The decision upholds an April 2011 decision by Commission Judge Alan Paez and an August 2014 Commission decision. Both agreed with the Secretary that MSHA’s policy regarding continuity tests for extension cords was not a substantive rule change to §56.12028 that required a rulemaking. The ruling means that operators need to conduct continuity tests on extension cords annually and when the cable is first put into use, but not every time the cord is subsequently plugged in.
The case stemmed from an April 2008 inspection at Tilden Mining Co.’s Ishpeming, Mich., mine. MSHA issued two violations of §56.12028 for failing to test and record the resistance of extension cords used as part of the grounding system.
Tilden argued that §56.12028 does not apply to extension cords, and cited a 1999 decision in which former ALJ T. Todd Hodgdon vacated 67 citations and held that §56.12028 does not apply to extension cords, power cords or cables.
Tilden argued that it lacked fair notice, and that MSHA’s Program Policy Manual (PPM) provisions on §56.12028, and 1994 Program Policy Letter (PPL) No. P94-N-1 on which they are based, were not interpretative guidelines but substantive rule changes that required notice and comment rulemaking.
The Commission found, and the court agreed, that MSHA’s stance is reasonable. “A grounding system is only as protective as its weakest link, which is why it is critical to ensure that all the necessary components of the grounding system are fully functional, including extension cords and cables. Otherwise, the grounding system will cease to function,” the court said quoting directly from the Commission’s decision.
The court noted that MSHA required this testing as far back as 1988, when the PPM stated that grounding conductors in trailing cables, power cables and cords that supply power to tools and portable equipment must be tested “as prescribed in the regulation.” This language was restated repeatedly in PPM updates in 1994, 1996 and 2003.
There was never any prior position of the Secretary that extension cords were ever exempt from testing.
Regarding whether a rulemaking was needed to bring cables and cords that supply power to tools and portable equipment under the testing requirements of §56.12028, the court said that MSHA was not required to use notice and comment procedures to issue an initial interpretative rule, as it did in this case with the PPL, or procedures first outlined in the 1988 PPM.
The court said that extension cords and power cables are naturally understood to be components of the grounded electrical circuit because the cable or cord is to facilitate the movement of electricity from the power source to the equipment, which creates a continuous, grounded electrical circuit.
“That makes the testing of power cables and extension cord textually logical,” the court said. In quoting the MSHA inspector who issued the citations, the court added, “The idea behind grounding is to protect the people who use metal-encased equipment from electric shock. If an extension cord is being used, it too, must be grounded for the same reasons the metal-encased equipment itself should be grounded. The extension cord has now extended the circuit to the end of the extension cord. Conducting a continuity test assures one that the extension cord is connected directly to the ground prong and thus, the grounding circuit is complete, including the extension cord.”
The court added, “In short, the fairest reading of the text mirrors its purpose: miners cannot be protected from electrical shock if a necessary component of a grounded electrical circuit has high resistance or is not continuous.”
The company also tried to argue that the terms “extension cord” or “power cable” are not found in the standard, and that the cords are temporary pieces of equipment that “do not fit comfortably within the regulations’ categories of permanent pieces of equipment for which direct grounding is required.”
To this argument the court said that, “outlets, power sources and other conductors of electricity are not mentioned by name either. … What is critical is that the cords and cables fall within the natural compass of the phrase ‘grounding system,’ an expansive term that includes multiple constituent components.” The court noted that mobile equipment powered by cables can be detached from electrical systems, and “Tilden’s distinction between temporary and permanent installations does not hold together.”
TILDEN MINING CO. INC., 8/12/2016, CA DC No. 14-1170; 23 MSHN D-1871