April 25, 2017

April 25, 2017

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April 24, 2017

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Continuous Miner Electric Shock: M-Class Mining, LLC; Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Mark McCurdy

This case involves Section 104(d)(2) orders 8432252 and 8432253 issued by MSHA to M-Class Mining, LLC (M-Class) pursuant to 30 C.F.R. Section 75.509  and 30 C.F.R. Section 75.1720(c). In addition, MSHA sought a civil penalty against M-Class supervisor electrician Mark McCurdy (McCurdy) under Section 110(c) of the Mine Act relating to the alleged violation in Order Number 8432253.

Order Number 8432252 alleged McCurdy was performing work on an energized continuous miner in violation 30 C.F.R. Section 75.509 when he received an electrical shock. 30 C.F.R. section 75.509 requires “[a]ll power circuits and electric equipment shall be deenergized before work is done on such circuits and equipment, except when necessary for trouble shooting or testing.” MSHA issued the order as reasonably likely to cause a fatal injury to one person with reckless disregard negligence.

Order Number 8432253 alleged McCurdy was not wearing gloves in violation of 30 C.F.R. Section 75.1720(c) while testing and troubleshooting a continuous miner. 30 C.F.R. Section 75.1720(c) requires underground miners to wear “[p]rotective gloves when handling materials or performing work which might cause injury to the hands; however, gloves shall not be warn where they would create a greater hazard by becoming entangled in the moving parts of equipment.” MSHA issued the order reasonably likely to cause a fatal injury to one person, and reckless disregard negligence. The Secretary sought total civil penalties of $52,500.00 against M-Class and $8,000.00 against McCurdy.

The facts of this case involved a situation where McCurdy, a maintenance foreman at M-Class, experienced an electrical shock injury while attempting to determine the source of an intermittent loss of power on a continuous miner. McCurdy was working alone at the time of the incident. According to McCurdy he initially tested the radio controller for the continuous miner and did not find any defects. He next locked and tagged out the miner to examine the machine and open the control panel to check wires, connections, and other electrical components. After restoring the power to the machine he was unable to force the machine to drop power.

Following several attempts at locking and tagging out the miner, bumping the machine’s cutting head, and other trouble shooting exercises he was unable to mimic the problem. During the second attempt he again locked and tagged out the continuous miner to examine the radio circuitry outside the machine, check internal components in the control panel of the machine, and check all the wires and connections. After completing these takes he restored power to the miner to check the fault log on the machine’s computer system and “bump” the cutter head to see if there were any loose wires and if shaking the machine would make it drop power. At some point McCurdy walked away from the continuous miner and when he returned he was kneeling in front of the machine when he received the electrical shock. He was not wearing gloves at the time. McCurdy was hospitalized overnight as a result of the electrical shock.

During MSHA’s investigation into the incident the agency issued the two orders identified above. Order Number 8432252 alleged McCurdy was performing work on the energized continuous miner at the time he was shocked, in violation of 30 C.F.R. Section 75.509. Order Number 8432253 alleged his failure to wear gloves while testing and troubleshooting the continuous miner violated 30 C.F.R. Section 75.1720(c).

Following the discovery phase of the case M-Class and McCurdy jointly filed motions for summary decision asking ALJ Rae to vacate both orders. In response MSHA’s counsel filed an opposition and a cross motion for summary decision seeking an order upholding both violations and the civil penalties proposed against M-Class and McCurdy.

In the decision ALJ Rae first reviewed the facts involving Order Number 8432252. In so doing, the ALJ noted that the sole dispute between the parties was whether McCurdy was required to deenergize the continuous miner based on the work he was doing when the electrical shock occurred. The standard cited required power circuits and electrical equipment be deenergized before work is done except when necessary for trouble shooting or testing. Citing MSHA’s Program Policy Manual (PPM) McCurdy argued that “troubleshooting” or “testing” includes locating electrical, hydraulic, or mechanical problems on the continuous miner.

On the other hand, the Secretary argued McCurdy’s activities went well beyond troubleshooting which required the electrical current to be removed from the continuous miner. The Secretary advanced an interpretation of his PPM that required a miner to wear gloves or be using a meter to take readings in order to constitute troubleshooting. ALJ Rae found that the Secretary’s reliance on the language in the PPM to prove a violation of 30 C.F.R. Section 75.509 unsupportable. She further found McCurdy, who was a qualified electrician, was engaged in troubleshooting and that 30 C.F.R. Section 75.509 allowed him to energize the continuous miner as needed to conduct testing such as checking the machine’s computer fault log and bumping the cutter head. ALJ Rae stated that the electrical shock did not prove a violation of the standard. Moreover, because there were no witnesses to the accident, the Secretary was unable to prove McCurdy placed his hands into the machine’s electrical panel or that he was performing work at the time of the electrical shock. Accordingly, M-Class and McCurdy was entitled to summary decision on the issue of Order Number 8432252.

With regard to Order Number 8432253, the Secretary alleged McCurdy was not wearing gloves when he was testing and troubleshooting the continuous miner in violation of 30 C.F.R. Section 75.1720(c). The ALJ noted that McCurdy was, in fact, not wearing gloves at the time of the accident. M-Class argued McCurdy was not working on the continuous miner at the time of the electrical shock, but instead was kneeling in front of the machine. Moreover, the Secretary was unable to prove McCurdy was handling materials or performing work which may cause injury to his hands as required under the regulation.

On this issue ALJ Rae agreed with M-Class citing the Secretary’s lack of evidence in establishing McCurdy’s activities at the time he was shocked and his failure to rule out the shock may have occurred as a result of McCurdy losing his balance or falling creating accidental contact with the machine’s electrical panel. ALJ Rae also pointed out the Secretary did not challenge McCurdy’s statement of events on the day of the accident and failed to offer any other evidence of McCurdy’s activities. The ALJ ultimately found that the Secretary was unable to identify any material facts that remained in dispute entitling M-Class to a summary decision on Order Number 8432253. Both orders were subsequently vacated by ALJ Rae.

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About this Author

Robert Huston Beatty Jr, Dinsmore Shohl Law Natural Resources Litigation, lawyer
Partner

Robert Huston Beatty, Jr. is a member of the Natural Resources Practice Group. Bob represents mine operators before federal and state administrative agencies, federal courts, and state courts. He also provides pre-enforcement consulting services, including comprehensive training for mine managers and safety professionals.

Education

J.D., West Virginia University College of Law (1993)
B.A., West Virginia University (magna cum laude, honors scholar, 1990)

Bar Admissions

West Virginia

304-225-1412
Jason M. Nutzman, Dinsmore Law, Labor Lawyer, Mine Safety Attorney
Partner

Jason Nutzman is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Jason represents clients before the Federal Mine Safety and Health Review Commission in accident investigations, special investigations, and discrimination investigations conducted by the Department of Labor with respect to the
Mine Safety and Health Act.

In his practice, he works with human resource managers and in-house counsel providing employment advice and litigation support to employers. Jason also provides employment counseling to employers from the beginning of the employment relationship through termination and employment advice covering all types of discrimination and wrongful discharge, FMLA, ADA, ADEA and FLSA issues, and non-compete agreements. Jason is also experienced in representing clients regarding labor issues, including dealing with unions during a labor campaign and assisting management with a unionized workforce.

(304) 357-9938
Max Corley, Labor, Employment Practice, attorney, Dinsmore Shohl, law firm
Partner

Max Corley is a Partner in the Labor Department and a member of the Employment Practice Group. His practice is focused on the defense of clients in federal and state coal mine safety and met/nonmetal safety regulatory matters before federal and state administrative agencies, federal court and state courts and civil defense litigation. Max regularly represents mine operators and contractors in the coal industry and in the metal/nonmetal sector of MSHA enforcement, including mine operators, quarry operators and producers of various metals, stone, sand, gravel and other...

304-357-9945
Lorna M. Waddell, Dinsmore, Of Counsel mine safety and health lawyer
Of Counsel

Lorna Waddell is a member of the Labor and Employment Department. She practices in the area of mine safety and health. 

Prior to joining the firm, Lorna worked for two separate law firms in Morgantown for a total of 13 years. After graduating from law school, she served as law clerk for the late Honorable Robert E. Maxwell, United States District Court for the Northern District of West Virginia. Lorna has also served as an adjunct lecturer on appellate advocacy at West Virginia University College of Law.

304-225-1448