By Ellen Smith
MSHA erred in issuing a citation against an iron ore mine for an alleged electrical violation under §56.12016, the 8th U.S. Circuit Court of Appeals ruled in March, overturning a decision of ALJ Janet Harner.
In siding with Northshore Mining, the court ruled that §56.12016 applies to electrical hazards only, and is written to prevent electrocution; it was not written to prevent mechanical movement, as charged by MSHA.
Northshore Mining uses a custom-built, Electric Cable Shovel, which requires maintenance several times a day. Power is provided by a 7,200-watt trailing cable that powers the main functions, and an auxiliary transformer powers lights, heat, air conditioning and other “housekeeping” functions. Each line has a “knife blade switch” which can be opened to shut off main or auxiliary power.
P&H, the builder of the shovel, set up a repair procedure in which first the control supply and relay supply circuit breakers would be locked out. After a test start, each person working would put a personal lock on a lock box to complete the locking out.
MSHA cited the mine on Jan. 19, 2010, alleging a mechanic was working on the bucket with only the circuit breakers locked out, and not the main power. MSHA argued that the standard is designed to prevent both accidental movement of the machinery and electrocution. To properly de-energize the shovel, first power must be disconnected from the main source, and then there must be visual confirmation that the conductors are separated, or the line must be tested to ensure the lack of electricity.
The company set up its procedure to disengage the control and supply breakers when performing maintenance, but it did not include opening the knife blade switches because only an electrician could operate them. But any mechanic or qualified employee could lock out the circuit breakers. The company argued that when it locked out the two circuit breakers, the machine could not move mechanically and therefore it was “de-energized” as the standard requires.
ALJ Harner affirmed MSHA’s violation of §56.12016 for failure to properly de-energize a piece of heavy mobile equipment. She held that Northshore’s method of opening and locking/tagging out of circuit breakers, rather than opening and locking/tagging out the knife switches as insisted on by MSHA, violated §56.12016.
Interpretation Inconsistent With Language
Examining the statute, the court concluded that MSHA’s interpretation of the regulation’s reach was “inconsistent with its text and placement in the regulatory scheme.”
Section 56.12016 under 30 CFR Supart K was written to abate the risk of electrocution:
“Section 56.12016 applies to the hazard of electrical shock, not the injuries sought to be avoided here from mechanical movement,” the court said. “We thus disagree with MSHA’s conclusion that §56.12016 was designed to target both mechanical movement and electrocution.”
The regulations in subpart K, concern the danger of electrical shock and do not address the hazard of accidental movement of electrical equipment while mechanical work is being done, the court said.
The court also noted, based on previous court decisions since 1982, MSHA has had an opportunity to amend the standard, but has failed to do so. “MSHA has not changed the regulation even when it had the opportunity to do so, despite a longstanding judicial interpretation and ongoing discussion in administrative cases regarding the regulation’s applicability in these circumstances. This further convinces us that MSHA’s interpretation is unworthy of deference in this instance,” the court said. E
Northshore Mining Co. v. Secretary of Labor, MSHA, FMSHRC, 3/8/13, appeal of Commission ruling, Docket No. 12-2249; 20 MSHN D-1074.
§56.12016: Electrically powered equipment shall be de-energized before mechanical work is done on such equipment. Power switches shall be locked out or other measures taken which shall prevent the equipment from being energized without the knowledge of the individuals working on it.