D.C. Circuit Affirms Electric Citation Against Mine

By David Schwartz

Aug. 12 — Power cables and extension cords are components of the electrical grounding systems that a mine owner is required to test regularly for continuity and resistance to prevent electrical shocks to workers, a federal appeals court ruled Aug. 12 ( Tilden Mining Co. v. Sec'y of Labor, D.C. Cir., No. 14-1170, 8/12/16 ).

The term “grounding systems,” the U.S. Court of Appeals for the D.C. Circuit ruled, “encompasses all of the related parts of the electrical circuit—all of the parts in the system—that together are grounded to the earth,” including cables and extension cords. The decision affirms a ruling of the Federal Mine Safety and Health Review Commission.

An inspector with the federal Mine Safety and Health Administration in Michigan issued two citations to the Tilden Mining Co. in April 2008, for failing to perform continuity and resistance testing on certain equipment and extension cords. The mine contested the citations, arguing that power cables and extension cords don't fall within the term “grounding systems.” Even if they did, the mine argued, the secretary of labor's inclusion of those parts within the term wasn't lawful because the position hadn't been adopted by notice-and-comment rulemaking.

An administrative law judge with the commission upheld the citations, and a penalty of $1,050, as did the commission itself, in a 2014 decision ( Sec'y of Labor v. Tilden Mining Co. (FMSHRC 2014)). Tilden then appealed to the D.C. Circuit.

In its review, the appellate court noted that while reviewing courts traditionally give great deference to an agency's interpretation of its own regulations, such deference wasn't necessary in a case like this one “where an agency's interpretation is the fairest reading of a regulation.”

The regulation under which Tilden was cited, 30 C.F.R. 56.12028, defines “grounding systems” to include all the related parts of the electrical circuit, according to the court, which includes cords and cables that are plugged into the system. These must be tested, according to the regulation “immediately after installation, repair, and modification; and annually thereafter.”

Miners, the D.C. Circuit said, “cannot be protected from electrical shock if a necessary component of a grounded electrical circuit has high resistance or is not continuous.”

The court went on to dismiss several other claims. Tilden argued, for example, that the secretary's position that cables and cords have to be tested “after installation” means every time they are plugged in. Here, the D.C. Circuit embraced the secretary's position before the commission, that “installation” just means the first time any cord or cable is connected.

Alternatively, the mine argued, cords and cables are merely plugged in, so there is no “installation,” and, therefore, the term doesn't apply. “Installation” refers to the entire grounding system, the court countered.

Tilden also argued that the industry doesn't recognize “grounding systems” as including extension cords and power cables. “Disavowals by those on the receiving end of regulation cannot, by themselves, alter a regulation's natural meaning,” the D.C. Circuit replied.

The court concluded by saying that in this case, the secretary's reading of the regulation “was reasonable and non-legislative, making notice-and-comment rulemaking unnecessary.”

When reached by e-mail Aug. 12, Tilden's lead attorney, Ralph H. Moore II with Jackson Kelly, PLLC, in Pittsburgh, said he was still analyzing the decision and had no comment.

Attorneys for the U.S. Department of Labor represented the secretary.

Circuit Judge Patricia A. Millett wrote the opinion. She was joined by Chief Judge Merrick B. Garland, who was a member of the panel when the case was argued, but didn't participate in the opinion, and Senior Circuit Judge Stephen F. Williams.

To contact the reporter on this story: David Schwartz in Washington at dschwartz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The opinion by the U.S. Court of Appeals for the District of Columbia Circuit in Tilden Mining Co. v. Sec'y of Labor is available at http://www.bloomberglaw.com/public/document/Tilden_Mining_Company_Inc_v_Secretary_of_Labor_et_al_Docket_No_14 .

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