Northshore Mining Co.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Northshore Mining after miners used a narrow beam to reach an elevated cooler platform and after a large shovel operated for weeks without its left-side mirror. Judge Michael E. Zielinski found that both conditions violated the cited standards and that the operator was highly negligent. He rejected unwarrantable failure for both violations because the hazards were limited, had not prompted earlier enforcement, and did not present the high degree of danger alleged by MSHA. The safe-access citation remained S&S but was reduced from fatal gravity to lost-workdays or restricted-duty injury, while the missing-mirror violation remained unlikely to cause a fatal injury. Both section 104(d)(1) actions were modified to section 104(a) citations, with penalties of $4,500 and $2,500. The judge dismissed the individual penalty claim against foreman Robbie M. Wills because his conduct did not rise above ordinary negligence.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11001 and 56.14100(b)
• Outcome: Both violations were affirmed but reduced to section 104(a) citations, total penalties were $7,000, and the individual section 110(c) claim was dismissed.
• Key point: Knowledge of a condition did not establish unwarrantable failure or individual liability where the hazards were limited and management reasonably viewed them as less serious.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Ave., NW, Suite 520 N

Washington, DC 20004-1710

April 18, 2013

NORTHSHORE MINING CO., 

Contestant, 

v.

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Respondent 

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), 

Petitioner, 

v.

NORTHSHORE MINING CO., 

Respondent 

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), 

Petitioner, 

v.

ROBBBIE M. WILLS, employed by,

NORTHSHORE MINING CO., 

Respondent 

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CONTEST PROCEEDINGS

Docket No. LAKE 2010-666-RM 

Order No. 6493367;04/14/2010

Docket No. LAKE 2010-668-RM

Citation No. 6493359;04/06/2010

Mine: Northshore Mine

Mine ID: 21-00209

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2010-964-M

A.C. No. 21-00209-229431

Mine: Northshore Mining Company

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2012-6-M

A.C. No. 21-00209-267117 A

Mine: Northshore Mining Company

DECISION

Appearances:  Travis Gosselin, U.S. Department of Labor, Chicago, Illinois, on behalf of the

Secretary of Labor;

R. Henry Moore, Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, on behalf of

Northshore Mining Company and Robbie M. Wills.

Before:            Judge Zielinski

These cases are before me upon Notices of Contest and Petitions for Assessment of
Penalty filed by the Secretary of Labor pursuant to sections 105(d) and 110(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d), 820(c). The petition in LAKE 2010-964-M alleges that Northshore Mining Company is liable for two violations of the Secretary’s
Safety and Health Standards for Surface Metal and Nonmetal Mines, and proposes the imposition
of penalties in the amount of $29,500.00. The petition in LAKE 2012-06-M alleges that Robbie
M. Wills, an agent of Northshore Mining, is personally liable for one violation of the standards,
and proposes the imposition of a penalty in the amount of $2,700.00. A hearing was held in
Duluth, Minnesota and the parties filed post-hearing briefs. For the reasons that follow, I find
that Northshore committed the violations and impose civil penalties in the total amount of
$7,000.00. I find that Wills is not liable under section 110(c) and dismiss the petition filed
against him.

Findings of Fact - Conclusions of Law

Citation No. 6493359

Citation No. 6493359 was issued by John Koivisto

at 2:33 p.m. on April 6, 2010,
pursuant to section 104(d)(1) of the Mine Act. It alleges a violation of 30 CFR § 56.11001 which
requires that “[s]afe means of access shall be provided and maintained to all working places.”
The violation was described in the “Condition and Practice” section of the citation as follows:

Crusher Ground Floor Repair Bay: Safe access was not provided to the upper
elevated work platform on the east side of the “Evapco” oil cooler. Personnel
were reportedly walking [a]... 6.5 inch wide steel beam on the south side of the
cooler for a distance of about 12 feet to access a vertical ladder. The beam was
about 3 feet above the steel platform deck. There were numerous trip hazards
along the beam including piping, angle iron, and a fall hazard to the lower floor
near the ladder. Footprints were observed on a wooden box and on the beam.
Reportedly[,] personnel access the upper platform monthly via this route. Crusher
Coordinator Rob Wills engaged in aggravated conduct constituting more than
ordinary negligence in that he was aware personnel were using this means of
unsafe access. The violation is an un-warrantable failure to comply with a
mandatory standard.

Ex. S-1.

Koivisto determined that the violation was reasonably likely to cause a fatal injury, that it
was significant and substantial, that one person was affected, and that the operator’s negligence
was high.

He also determined that the operator’s negligence rose to the level of unwarrantable
failure.

A civil penalty in the amount of $24,600.00 was specially assessed for the violation.

The Violation

On April 6, 2010, Koivisto was at the Northshore Mine and conducted an inspection of
the crusher area. Tr. 25, 84-85. He was accompanied by Dean DeBeltz,

a Northshore safety
representative. As Koivisto climbed a stairway to an Evapco cooler, he noticed a wooden box,
and upon further investigation, discovered a steel beam near the box, both with footprints,
indicating that miners were using the beam to reach a ladder that led to an upper platform on the
cooler. Tr. 35-36; Ex. S-5. Robbie Wills, the foreman of the section, told Koivisto that
approximately once a month, employees would step onto the box to reach the beam and walk
across the beam to a ladder that led to the upper platform in order to do preventative maintenance
work. Tr. 37, 128-29. This route was established because access to the ladder from a lower
platform was eliminated when the cooler was installed.

The beam is depicted in a photograph and a drawing made by Koivisto. Ex. S-4, S-5C. It
was flat, smooth, approximately 6 ½ inches wide, and ran along the south side of, and 10-14
inches away from, the cooler. Tr. 34, 42. Miners using the route would step onto the box at the
southwest corner of the cooler, step onto the beam, and walk approximately 12 feet to a ladder
that was mounted vertically on the southeast corner of the cooler. Ex. S-4. The passageway was
22 inches wide, measured from the wall of the cooler on the left to two pipes on the right that
were 3-4 inches in diameter and mounted, one above the other, from 30 to 46 inches above the
beam. Tr. 44, 127; Ex. S-5C. A steel deck was located 3 feet below the beam. Ex. S-1. The
rails of the ladder touched the edge of the beam. Consequently, the distance between the ladder
rails and the pipes on the right was approximately 8-10 inches. Ex. S-5C. Just before reaching
the ladder, a small 1-inch diameter pipe crossed over the beam at a height of approximately 1
foot. Tr. 46-47, 87-89; Ex. S-5C. Approximately 10-12 inches beyond the ladder, another pipe,
the top handrail of the cooler’s lower work platform, crossed the beam, at a height of
approximately 4 inches. Tr. 47; Ex. S-5D. There was also a piece of angle iron in that area, but it
is unclear whether it extended over the beam. The lower work platform did not extend beyond
that railing, and at that point the distance to the floor below was 15-17 feet. Tr. 47; Ex. S-5G.
Once he reached the ladder, a miner would step over the small pipe, turn to face the ladder and
the cooler, sliding into the 8-10 inch gap between the ladder and the pipes, and climb up three
rungs to the upper work platform.

While men who used the access route told Koivisto that they did not think the route was
unsafe, he believed that it was unsafe because there were unprotected openings, no handrails, and
either a 3 foot or a 15-17 foot fall if a miner tripped on a pipe or mis-stepped as he walked along
the beam. Tr. 35. In addition, employees confirmed that not everyone who used the access route
wore fall protection. Tr. 38. Koivisto posited that these factors could have led to serious injuries
of the knees, back, or arms, if a miner mis-stepped while walking the beam, or a fatal injury if he
fell through the gap between the ladder and the pipes to the floor below.

Respondents argue that the access route did not violate the standard because it was safe
and there was “no realistic likelihood of falling.” Resp. Br. at 5. They maintain that the wall of
the cooler and the pipes provided protection to a miner walking on the beam by, in essence,
providing handrails. Tr. 87; Resp. Br. at 5. Further, they point to a policy letter issued by
MSHA, entitled “Safety Belts and Lines,” that states, in essence, that fall protection is not
required where there is a danger of falling less than 6 feet. Resp. Br. at 6; Program Policy Letter
P12-IV-01.

The program policy letter states, “[i]n many cases, compliance with OSHA's fall
protection standard will satisfy the requirements of MSHA's 30 C.F.R. §§ 56/57.15005 standard.”
Program Policy Letter P12-IV-01. However, Respondent was not cited for violating section
56.15005 and nowhere in the letter is section 56.11001 addressed. Under the policy letter, fall
protection may not have been required in the circumstances at issue, but that does not mean that
the access route was otherwise safe.

The question to be resolved is whether the access route along the beam posed a danger to
miners who had to traverse it in order to reach the upper work platform of the cooler. See
Western Industrial, Inc., 25 FMSHRC 449, 452 (Aug. 2003). While the miners were trained to
have three points of contact while traveling down the beam, the beam was relatively narrow,
there was a trip hazard, and there were openings on either side of the beam. A misstep while
traversing the beam, attempting to step over the small pipe, or attempting to step onto the beam
while descending the ladder, could have resulted in a number of injuries, as described by
Koivisto.

The fairness of applying a broadly worded standard, like section 56.11001, to particular
factual situations is judged by application of the “reasonable person test,” i.e., what a reasonably
prudent person, familiar with the mining industry and the protective purpose of the standard
would have provided in order to meet the protection intended by the standard. Ideal Cement Co.,
12 FMSHRC 2409, 2415 (Nov. 1990). Here, Wills, the newly assigned foreman, had identified a
problem with the route and had initiated steps to address it. While his assessment that the route
did not pose a high degree of danger was not unreasonable, it clearly did pose a danger, and a
reasonable person would have concluded that it did not meet the safe access protection intended
by the standard.

I find that safe access was not provided, and that the standard was violated.

Significant and Substantial

The Commission reviewed and reaffirmed the familiar Mathies

framework for
determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65
(Oct. 2011):

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. §
814(d), and refers to more serious violations. A violation is S&S if, based on the
particular facts surrounding the violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a reasonably serious
nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies, 6 FMSHRC 1, the Commission further explained:

In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety--contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133,
135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).

. . . .

. . . .

The Commission recently discussed the third element of the Mathies test
in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81
(Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine
map). The Commission held that the “test under the third element is whether
there is a reasonable likelihood that the hazard contributed to by the violation, i.e.,
[in that case] the danger of breakthrough and resulting inundation, will cause
injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove
a reasonable likelihood that the violation itself will cause injury.” Id. The
Commission also emphasized the well-established precedent that “the absence of
an injury-producing event when a cited practice has occurred does not preclude a
determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906
(Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June
1996)).

The fact of the violation has been established. It contributed to a discrete hazard,
a miner mis-stepping or tripping and falling. Whether the violation was S&S turns on
whether the hazard was reasonably likely to result in an injury causing event and whether
it was reasonably likely that an injury would be of a reasonably serious nature.

Koivisto determined that an injury was reasonably likely to occur, and he thought
that miners would have continued to use the beam in order to access the cooler. Tr. 73-74. In addition, several miners stated that they did not wear fall protection, which Wills
explained would not have prevented a fall of 3 feet to the deck below. Tr. 38, 161.
Koivisto posited that a miner could have hurt his back, fractured a knee, or broken an arm
or his tail bone from trying to catch himself from a mis-step, tripping, or falling from the
beam. Tr. 42-43. He also anticipated that a miner could have fractured his leg, hurt his
knee, or suffered a broken ankle as a result of slipping off the beam where piping and
small openings were located. Tr 44. Furthermore, he stated that if a miner went beyond
the ladder and tripped over the handrail pipe or angle iron, or tripped and fell between the
ladder and the pipes on the right, he could fall to the concrete floor below, and suffer a
fatal injury. Tr. 47, 56-57.

Koivisto agreed that miners could have touched the cooler to the left and the pipes
to the right of the beam in order to steady themselves as they walked 12 feet on the beam
to reach the ladder, stepping over the small pipe. Tr. 87. Miners were trained to use three
points of contact when climbing a ladder to prevent falls. Tr. 90, 132. They did not
carry tools up the ladder. If tools were needed, they would be set on the upper platform,
which was easily reachable from the lower platform, prior to climbing to the upper
platform. Tr. 129. Crusher technicians that Koivisto interviewed stated that they did not
think that access to the cooler was unsafe. Tr. 96, 173-174; Ex. R-5. Even so, Wills was
in the process of developing solutions to improve access to the upper work platform.

The cooler and the access route had been in place for approximately 10 years and
even though Wills had identified the condition as awkward and developed possible
solutions for alternate access, he did not move forward with plans to remedy it because he
was addressing other issues. Tr. 85, 125-26. This indicates that the condition would have
continued to exist for a considerable period of time, making injury reasonably likely. A
miner would have no reason to proceed to the east beyond the ladder, and it is highly
unlikely that a miner would fall through the relatively narrow opening between the ladder
and the pipes. Consequently, there was no realistic possibility of the condition resulting in
a fatal injury.

However, a fall from a mis-step or tripping could reasonably have been
expected to result in lost workdays or restricted duty from a miner fracturing or otherwise
injuring his knee, ankle, or back. I find that these injuries would have been reasonably
serious in nature, and therefore, that the violative condition was significant and substantial.

Unwarrantable Failure- Negligence

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission
reiterated the law applicable to determining whether a violation is the result of an
unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the Act,
30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); see
also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)]
(approving Commission's unwarrantable failure test).

Whether conduct is “aggravated” in the context of an unwarrantable failure
analysis is determined by looking at all the facts and circumstances of each case to
see if any aggravating factors exist, such as the length of time that the violation has
existed, the extent of the violative condition, whether the operator has been placed
on notice that greater efforts are necessary for compliance, the operator’s efforts in
abating the violative condition, whether the violation is obvious or poses a high
degree of danger, and the operator’s knowledge of the existence of the violation.
See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald
Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d
42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC
1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1988). All of the relevant facts and circumstances of each case must be examined
to determine if an actor’s conduct is aggravated, or whether mitigating
circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to
a high standard of care, another important factor supporting an unwarrantable
failure determination is the involvement of a supervisor in the violation. REB
Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

The Secretary asserted that the violation was the result of Northshore’s unwarrantable
failure because Wills knew employees were using the beam as a means of access and he did not
stop the practice, barricade the area, contact the safety department, or submit a work order.

Tr. 72-73; Sec’y Br. at 20-21. The Secretary also maintained that the condition posed a high
degree of danger. Sec’y Br. at 20-21. Koivisto believed that the violation was an unwarrantable
failure because Wills exemplified “aggravated conduct beyond ordinary negligence . . . . ” Tr. 74.

Obviousness and Operator’s Knowledge of the Existence of the Violation

Wills was aware of the access route to the cooler and stated that the means of access had
always been the same. Tr. 60; Ex. S-2 at 2. He had also used the beam once himself to
investigate a safety chain issue that was found during a January 2010 inspection. Tr. 61, 62, 69;
Ex. S-2 at 2. Wills told Koivisto that when he looked at the platform, he realized there was an
access problem and discussed how to resolve it with the crusher group. Tr. 67, 138; Ex. S-3 at 12.

Wills did not think that the access route was unsafe, only that it was awkward and not the
best design. Tr. 133, 138; Ex. R-4. In addition, the men who used the access route did not think it
was unsafe. Nonetheless, Wills put the access route on his list of issues to address, but had not
moved forward with possible solutions. Wills stated that after telling Koivisto this, he responded
by saying that if they had understood each other better, he might not have written a “d” order, i.e.
charged Northshore with unwarrantable failure. Tr. 136. However, after conducting some
research, Koivisto maintained that the “d” order was proper. He discovered that Wills never
submitted a work order and continued to send miners up to the platform to perform maintenance
because he did not have time to address the issue. Tr. 68.

The violative condition was obvious and I find that Northshore had knowledge of the
existence of the violation.

Length of Time

The Evapco cooler was installed in 2001 and the access route conditions had not changed
through the issuance of the order in 2010. Tr. 85. In addition, absent the citation, the condition
would have continued for the foreseeable future.

Operator Placed on Notice that Greater Efforts at Compliance were Necessary

The Secretary did not present any evidence that Northshore was placed on notice that
greater efforts at compliance were necessary.

Extent of the Violation

The extensiveness factor involves consideration of the scope or magnitude of a violation,
not an additional consideration of dangerousness or obviousness. Eastern Associated Coal Corp.,
32 FMSHRC 1189, 1195 (Oct. 2010).

Preventative maintenance was done on the cooler approximately once a month by one
miner. Tr. 128-29. There was no indication from either party that it was accessed for any other
reason or more frequently. Therefore, the scope and magnitude of the violation being small, I find
that the violation was not extensive.

Degree of Danger

As stated above, access to the cooler had not changed in approximately 9 years, and the
Secretary did not present any evidence of injuries that occurred as a result of walking the beam.
While there were no handrails, the pipes to the right of the beam and the cooler to the left
provided a reasonably secure passageway that allowed for three points of contact when a miner
was walking the beam. In addition, the miners who worked in the area, including Wills, did not
think the access route was unsafe. If, on the off chance, a miner did mis-step or trip while
walking the beam, the most serious expected injuries may have resulted in lost workdays or
restricted duty.

I find that the violative condition did not pose a high degree of danger to miners.

Operator’s Efforts in Abating the Violation

The focus of the abatement effort factor is on compliance efforts made prior to the
issuance of the violation, generally a measure of an operator’s response to violative conditions
that were known or should have been known to it. While the parties stipulated that Northshore
exhibited good faith in abating the violation, post-citation efforts are not relevant to the
determination of whether the operator engaged in aggravated conduct in allowing a violative
condition to occur. Enlow Fork Mining Co., 19FMSHRC 5, 17 (Jan. 1997).

When Wills became foreman of the crusher section, he sat down with employees about
once a month and discussed their concerns. Tr. 124. Wills also developed a list of projects to
undertake, one of them being improving access to the top of the cooler. Tr. 125-26. In January
2010, Koivisto identified a safety chain issue on an elevated platform. Tr. 124. As a result, there
was a campaign to repair or install handrail chains in other locations. Id. When Wills used the
access route to investigate the safety chain issue on the upper work platform of the cooler in
February 2010, he added it to the list of projects. Tr. 124-25. Wills talked to the crusher planner
about creating a different access route. Tr. 149. They developed several designs but never
narrowed the choices. Tr. 150-51. Wills testified that he could have submitted a work order
before deciding on a plan, but he would likely have had to go back and change it. Tr. 160. In
addition, he would have needed to speak with the supervisor to confirm the chosen plan before
sending the proposal to an engineering company, tasks that are not done via submission of a work
order. Tr. 162. Koivisto maintained that Wills could have taken other steps to address the
problem such as barricading the area or requiring miners to wear fall protection.

Northshore was in the process of addressing the issue, however, it had not continued to
move forward by deciding on a particular plan. The citation was terminated by simply moving the
ladder to a different point, which demonstrated that there was a relatively easy and quick solution.
Ex. S-5A. Additionally, while fall protection may not have prevented a fall to the deck below,
barricading the access route would have insured that no miner was put at risk of injury.

I find that Northshore made no effort to abate the violation.

Conclusion

Northshore had knowledge of the violative condition, and did not actively attempt to
correct it. The violative condition was obvious and existed for a long period of time. The
condition was not extensive, the operator was not placed on notice that greater efforts at
compliance were necessary, and it did not present a high degree of danger to miners.

In addition to the elements above, I agree with my colleague that, “lack of previous
enforcement must be considered when analyzing the negligence of the operator.” Sierra Rock
Products, Inc., 35 FMSHRC ___, slip op. at 8, No. WEST 10-1589 (Jan. 8, 2013) (ALJ) (review
granted Feb. 13, 2013); Tide Creek Rock, Inc., 24 FMSHRC 201, 123 (Feb. 2002) (ALJ). Miners
had been using the same access route to the cooler’s upper platform since it was installed in 2001.
There had been two complete inspections conducted by MSHA each year since that time. Tr. 85.
Not one inspector identified the condition as unsafe, including Koivisto, who had performed an
inspection of the same area in January 2010. Tr. 84, 85, 124. Koivisto maintained that the
location of the beam was somewhat hidden and that the ladder was not located in a position where
it could have been easily seen. Tr. 112. However, there was only one ladder to the upper
platform, and, as depicted in a photograph taken by Koivisto, the ladder was clearly visible from
the floor of the crusher area. Tr. 114, 116; Ex. S-5G.

Upon consideration of all the factors, I find that the violation was not the result of
Northshore’s unwarrantable failure to comply with the standard, but that based on the facts above,
its level of negligence was properly marked as high. 

Individual Liability

Section 110(c) of the Mine Act states: “Whenever a corporate operator violates a
mandatory health or safety standard . . . , any director, officer, or agent of such corporation who
knowingly authorized, ordered or carried out such violation, . . . shall be subject to . . . civil
penalties.” 30 U.S.C. § 820(c).

The proper legal inquiry for determining liability under section 110(c) is
whether the corporate agent knew or had reason to know of a violative condition.
Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d
632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United
Coal Mining Co. v. FMSHRC, 108 F.3d 358, 36264 (D.C. Cir. 1997). To establish
section 110(c) liability, the Secretary must prove that an individual knew or had
reason to know of the violative condition, not that the individual knowingly
violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992)
(citing United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)).

A knowing violation thus occurs when an individual “in a position to
protect employee safety and health fails to act on the basis of information that
gives him knowledge or reason to know of the existence of a violative condition.”
Kenny Richardson, 3 FMSHRC at 16. The Commission has explained that “‘[a]
person has reason to know when he has such information as would lead a person
exercising reasonable care to acquire knowledge of the fact in question or to infer
its existence.’” Id. (citation omitted). In addition, section 110(c) liability is
generally predicated on aggravated conduct constituting more than ordinary
negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).

Ernest Matney, 34 FMSHRC 777, 783 (Apr. 2012).

Wills started as a foreman for the crusher area less than one year before the citation was
issued. Tr. 122-23. The operator had just come back from a shut down and there was a large
turnover in management. Tr. 123. Because Wills was the only salaried coordinator, he had to
train his replacement in the bull gang, a new employee in the truck shop, and a new employee in
the electrical shop during the first few months of his new job. Tr. 123.

As discussed above in detail, Wills addressed general safety concerns with employees,
identified the access issue, and added it to his list of projects to undertake. While he thought that
the route was awkward, he did not pursue his effort to find a permanent solution.

On the other hand, the condition had existed for almost 10 years, and had never been
identified as an unsafe access route in any of the approximately 20 MSHA inspections conducted
during that time. Wills reasonably believed that the access route did not pose a serious hazard,
and that it had been at least implicitly approved by prior managers and inspectors. While he
should have had knowledge of the violation, his conduct cannot be characterized as indifference
or a serious lack of reasonable care that constituted more than ordinary negligence. I find that he
is not subject to liability under section 110(c) of the Act.

Order No. 6493367

Order No. 6493367 was issued by Koivisto at 10:54 a.m. on April 14, 2010, pursuant to
section 104(d)(1) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.14100(b) which states,
“[d]efects on any equipment, machinery, and tools that affect safety shall be corrected in a timely
manner to prevent the creation of a hazard to persons.” The violation was described in the
“Condition and Practice” section of the order as follows:

Company #103 (P&H model 2800) Cable/Rope Shovel: A defect on the shovel
was not corrected in a timely manner. The mirror mounted on the left side of the
shovel was not present. The shovel was in use at the time and reportedly the
mirror had been missing and not replaced since at least March 1, 2010. This
condition exposed personnel to mobile equipment hazards. Mine Maintenance
Coordinator Randy Lislegard stated he was awaiting a warranty ticket resolution by
the manufacturer since about September, 2009. Coordinator Lislegard engaged in
aggravated conduct constituting more than ordinary negligence in that he was
aware of the condition and allowed the machine to remain in operation without a
left side mirror. This violation is an unwarrantable failure to comply with a
mandatory standard.

Ex. S-6. 

Koivisto determined that the violation was unlikely to cause an injury, that the injury could
reasonably have been expected to be fatal, that one person was affected, and that the operator’s
negligence was high. He also determined that the operator’s negligence rose to the level of
unwarrantable failure. A civil penalty in the amount of $4,900.00 was specially assessed for the
violation.

The Violation - Gravity

During an inspection on April 14, 2010, Koivisto found that the left-side mirror of the No.
103 P&H 2800 shovel was missing. Tr. 186, 188. Generally, there is no requirement that mirrors
be installed on a shovel. Tr. 217. However, the manufacturer delivered the machine with two
mirrors, and if the absence of the mirror constituted a defect affecting safety, the standard required
that it be corrected in a timely manner. Tr. 217. The mirror on the right was close to the
operator’s cab, and provided a reasonable view to the rear along the right side of the shovel. In
contrast, the left-side mirror, the same size as the right-side mirror, was located 30 feet away from
the cab, on the left front corner of the shovel, approximately 20-30 feet above the ground, and the
operator’s view of the mirror was partially obstructed by a boom and cables.

The P&H 2800 shovel is an extremely large piece of equipment – described as the size of a
house – that is used to dig surface material, rock or taconite, and load trucks that haul the material
away. Tr. 189. The operator sits in a cab, three sides of which have windows, located on the top
right front corner of the machine. Tr. 189, 243. The upper part of the shovel, called the house,
rotates on a large center pin. The boom and related cables that support the shovel’s bucket, are
mounted in the center of the rotating part of the shovel. Tr. 199-200; Ex. S-10. In addition to the
mirrors, the shovel is equipped with two cameras: one is positioned on the boom, facing down
towards the shovel bucket, and the other is located on the rear, facing a trailing cable. Tr. 191,
193, 239-40; Ex. S-8 at 17, S-10. The rear camera remains in one spot and does not pivot with the
house. Tr. 278. A monitor located in the operator’s cab could display the view of either camera.
Tr. 239.

Koivisto stated that because the shovel is so large, there is very limited visibility to the
sides and rear of the machine and because the cab where the operator sits is on the right side of the
shovel, the left side is a blind spot. Tr. 194, 234. He maintained that the operator needed mirrors
to look for personnel or other equipment nearby. Tr. 194. Based on tire tracks he observed on the
left side, Koivisto asserted that rotating the bucket to the left, without the left side mirror, created
a crushing hazard to mobile equipment and personnel that might be located on the left side for
reasons such as loading, maintenance, or clean-up. Tr. 195-96, 216, 226; Ex. S-8 at 18, S-10.
Another potential crushing hazard was presented when the bucket was rotated to the right, because
the rear of the house would then swing out into what had been the left side of the shovel. Tr. 252.
However, the house would have passed over any miner on foot, and any mobile equipment that
might be struck would have to have been in very close proximity to the shovel.

Northshore maintains that the missing mirror was not a defect affecting safety because it
provided virtually no view of the left side of the shovel and was not used by shovel operators.
The left-side mirror was located some 30 feet from the operator’s cab, and the view of the mirror
was partially or totally obstructed by the boom and cables, depending on the position of the
bucket. Tr. 265-67, 285. Koivisto confirmed that the view could be obstructed at times. Tr. 233.
Several witnesses testified that the left-side mirror provided virtually no view of the left side of
the shovel, or the ground on the left side of the shovel. Tr. 265-67, 289. Koivisto confirmed that
the left-side mirror provided a “significantly lesser” view of the left side of the shovel than the
right-side mirror did of the right side, and was unable to state whether it could display the ground
on the left side of the shovel. Tr. 227-28. DeBeltz interviewed a number of shovel operators the
day after the order was issued, and none indicated that they used the left-side mirror. Tr. 249.

Operators interviewed by Koivisto told him the same thing, apparently with one exception. Tr. 219. The mirror was convex, distorting images, and it was not apparent from photographs
introduced into evidence exactly what could be seen in the mirror, or whether the ground was
visible. Tr. 235, 236, 294; Ex. S-10.

Northshore also maintains that the missing mirror presented no safety hazard during
maintenance, cleanup, locomotion, or loading. Randy Lislegard,

Northshore’s maintenance
coordinator, maintained that the left side mirror was not used to perform any of these functions.
Tr. 269. Positive contact with the shovel operator, by radio or sight, is required before any
approach to the shovel. For maintenance or repair work, which Koivisto explained could prompt
a “convention” of vehicles and personnel around and on the shovel, positive radio contact would
be made. The operator would then set the bucket on the ground and apply the brakes, which
locked the house. He would then leave the cab to lower a ladder on the right side of the shovel to
the ground. Tr. 244, 251. When the ladder is down, there is an interlock that prevents the shovel
from energizing. Tr. 270. A similar process, including positive contact with the operator, was
followed for clean-up around the shovel, and clean-up was done only at the request of the shovel
operator. Tr. 253.

When in operation, the power cable on the rear of the shovel is connected to a stationary
power source. When the shovel must be moved to a different location, a portable device called a
generator set is used to supply power to the shovel as it moves. During this process, the house
and operator are facing forward and the generator set follows behind the shovel which moves
slowly and in a straight line. Tr. 223, 271-72. The generator supplies only enough power to
provide locomotion. The bucket and all other power driven mechanisms are locked out, and the
house cannot rotate.

DeBeltz explained that to load material in a truck from either side of the shovel, the truck
driver would contact the operator of the shovel or vice versa, usually by radio. Tr. 243-44. Then,
the operator would move the bucket to where it would be positioned for loading. The truck would
then be backed in, and the shovel operator would sound the horn when the truck was in the proper
position. Tr. 242-43. The operator would then rotate the shovel back and forth to load the truck.
Tr. 269. The operator must see the truck in order to load it and DeBeltz asserted that the top of
the truck would have been visible. Tr. 243, 257.

At the time the order was issued, the shovel was positioned in such a way that its power
cable paralleled the material bank and created a narrow passageway that would not have allowed
traffic to pass from the right side over to the left side in back of the shovel. Tr. 247. DeBeltz
asserted that it would have been against company procedure and difficult to drive over the cable
because it was raised slightly above the ground and carried 7200 volts. Tr. 248. The cable and
the location of the bank made crossing in front of the shovel the only possible route to the left
side.

The shovel was delivered, and accepted by Respondent, with both left and right side
mirrors, which had to be maintained under section 56.14100(b) if safety was affected. Mirrors are
installed on mobile equipment as safety devices. While the view that the left-side mirror
displayed may have been distorted and did not show the ground on the left side of the shovel, it
provided some view of areas on the left side of the shovel, enough to provide some warning of the
presence of mobile equipment or personnel, which at least marginally increased the general safety
level with which the machine could be operated. As Koivisto explained, at times the mirror
would not provide much of a view, but at other times it could be critical. Tr. 235. Also telling,
was Lislegard’s statement that Northshore at first wanted to remove the left-side mirror, but was
told that it couldn’t. Tr. 272. The statement was not further explained, but it is possible, if not
likely, that the reason that removal of the mirror was barred was because it was considered safety
equipment.

I find that the absence of the left-side mirror was a defect affecting safety. As discussed
more fully, infra, Northshore knew that the mirror had been missing for at least six weeks, and
chose to pursue a warranty claim against the manufacturer rather than continue to replace the
mirror, which failed frequently. It did not correct the defect in a timely manner. Accordingly, I
find that failure to timely replace the missing left-side mirror violated section 56.14100(b).

Koivisto determined that a fatal crushing injury was reasonably expected to occur based on
the size of the shovel and the possibility that the bucket could be swung around at a low level,
such that it or material falling from it might strike persons or other mobile equipment. Tr. 216.
He also asserted that injury was unlikely because of the procedures requiring radio contact before
approaching the shovel, though, he was aware of accidents where radio communication failed
with large mobile equipment, but not specifically power shovels. Tr. 216, 230.

DeBeltz asserted that there were procedures in place requiring radio contact before
approaching the shovel, left-side loading was uncommon, and the shovel was locked out when
maintenance was performed. Tr. 219, 223-24. Further, he maintained that the house rotated
approximately 20 feet off the ground and would have passed over any unseen person standing on
the ground. Tr. 232. Whether it would have passed over mobile equipment would have depended
on the size and location of the equipment. Tr. 232. As for the possibility that the bucket would
strike a vehicle, there was nothing to obstruct the operator’s view of the bucket as it swung, and it
was swung more slowly to the left because of the limited visibility. Tr. 254-56.

I find that an injury was correctly marked as unlikely. If the bucket was swung and hit a
piece of mobile equipment as a result of the missing mirror, a fatal injury could be expected
because of the sheer size of the machine. Material falling from the bucket could also cause a
fatality, and the rear of the shovel could fatally injure the operator of a piece of mobile equipment
located close to the shovel.

Unwarrantable Failure - Negligence

The Secretary argued that the violation was the result of Northshore’s unwarrantable
failure because it knew that the mirror was missing and had the means to install a new mirror, but
chose to rely on the manufacturer instead, letting the condition continue for a long period of time.
Sec’y Br. at 29-30.

Obviousness and Length of Time

Shovel operators perform an inspection of the shovel before beginning to operate it, and
record the results on cards. At least eight pre-operation inspection cards, dated between March 1
and April 12, 2010, stated that the left mirror was missing. Tr. 205; Ex. S-12. Even though some
cards did not mention a missing mirror, the number of cards that did led Koivisto to believe that
the mirror had been missing since at least March 1, 2010, and that it had not been replaced
between then and April 12, 2010. Tr. 206. This belief was confirmed by Lislegard who told
Koivisto that he did not believe the mirror was replaced during the month of March. Tr. 208;

Ex. S-7 at 5.

Respondent had a computer system, referred to as “Ellipse,” that tracked work orders. The
system showed that the mirror had not been replaced since September 1, 2010 and no work orders
were placed subsequent to March 1, 2010. Tr. 275-77. However, as far as Wills was aware, the
mirror had been replaced between September and March. Tr. 293.

The violative condition was obvious, and at the very least, existed for a period of
approximately 6 weeks.

Operator’s Knowledge of the Existence of the Violation

In addition to the numerous pre-operation inspection cards given to the control room
operator that stated that the left-side mirror was missing, there was also a warranty ticket from
September 2010 that remained open at the time the order was issued. Tr. 209-11, 260-61;

Ex. S-7, S-11. Lislegard was in the process of trying to resolve the issue with P&H. Tr. 209-11.
It is clear that Respondent knew about the violation.

Operator Placed on Notice that Greater Efforts at Compliance was Necessary

There was no evidence presented by the Secretary that Respondent was placed on notice
that greater efforts were required to comply with the standard.

Extent of the Violation

The violative condition involved the failure to replace a left-side mirror that slightly
enhanced the safety of the shovel’s operations. It did not have a significant impact because, with
one exception, none of the operators used the mirror while performing tasks such as loading,
clean-up, and maintenance. In addition, the view that the mirror displayed, when visible from the
operator’s cab, was distorted and extremely limited.

I find that the violative condition was not extensive.

Degree of Danger

Debeltz testified to the communication and safety procedures that were used when the
shovel was in operation. For loading purposes, any truck driver that wanted to approach the
shovel had to make positive contact with the operator, usually by radio, and wait for the operator
to spot the truck. Likewise, advance radio communication was required for clean-up and
maintenance tasks, and the operator would shut off power and lock out the machine before any
maintenance personnel approached. Loading rarely took place on the left side. The operators,
almost uniformly, did not use the left-side mirror because of its obstructed and distorted view, and
the fact that it provided an extremely limited view of the left side of the shovel.

I find that the violative condition did not pose a high degree of danger.

Operator’s Efforts in Abating the Violation

Respondent had three 2800 P&H shovels in 2010 and all of them had issues with the
mirrors popping out of the plastic holder, cracking, or the plastic holders cracking. Tr. 262-63.
Prior to the issuance of the order, Respondent tried to use regular mirrors and mirrors with metal
backs but the mirrors were breaking before being installed on the shovels. Tr. 263. Mirror issues
were occasionally discussed at monthly meetings with P&H. Tr. 264, 281. Respondent wrote a
warranty ticket in response to its claim on September 8, 2010, but it was still open at the time the
order was issued. Tr. 214; Ex. S-11.

In addition to the warranty ticket, there were seven pre-operation inspection cards with
notes about a missing left mirror. The cards would go to the control room operator who would
then look in the Ellipse system to see if the same issue had already been tagged, and if it had not, a
work order would be created. Tr. 260-61. There were three work orders in the Ellipse system that
were dated prior to the warranty ticket. Tr. 261-62. There were no work orders placed between
March 1, 2010, and the time that the order was issued, which indicates that a work order was in
the Ellipse system for 6 weeks and it was not filled.

While Respondent had, in the past, tried to develop ways to keep the mirrors secure, and
replaced them periodically, it had chosen to pursue the manufacturer’s warranty claim and had not
replaced the mirror for at least 6 weeks. I find that Northshore made virtually no effort to abate
the violation.

Conclusion

Northshore had knowledge of the violative condition and did not attempt to address it for a
lengthy period of time. However, I do not consider the knowledge or abatement factors to be
particularly aggravating under these circumstances because Respondent had a legitimate, and
reasonable belief that the missing mirror did not pose a significant safety hazard. The violative
condition was obvious but it was not extensive, the operator was not placed on notice that greater
efforts at compliance were necessary, and the condition did not present a high degree of danger to
miners.

Upon consideration of all the factors, I find that the violation was not the result of
Northshore’s unwarrantable failure to comply with the standard. However, based on the facts
above, I find that the negligence level was properly marked as high.

The Appropriate Civil Penalties

As the Commission recently reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760,
1763 (Aug. 2012):

Section 110(i) of the Mine Act grants the Commission the authority to
assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further
directs that the Commission, in determining penalty amounts, shall consider:

the operator's history of previous violations, the appropriateness of
such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

Under this clear statutory language, the Commission alone is responsible
for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at
1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s
proposed penalties . . . we find no basis upon which to conclude that [MSHA’s Part
100 penalty regulations] also govern the Commission.”). While there is no
presumption of validity given to the Secretary’s proposed assessments, we have
repeatedly held that substantial deviations from the Secretary’s proposed
assessments must be adequately explained using the section 110(i) criteria. E.g.,
Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how the
findings contributed to his or her penalty assessments. Cantera Green, 22
FMSHRC at 622. In addition to considering the statutory criteria, the judge must
also set forth a discernible path that allows the Commission to perform its review
function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).

Good Faith - Operator Size - Ability to Continue in Business

The parties stipulated that Northshore demonstrated good faith in abating the violations.
Ex. J-1. It was also stipulated that paying the proposed penalties would not affect Northshore’s
ability to remain in business. Id. The parties did not stipulate to the size of Northshore as an
operator. However, the MSHA Data Retrieval System, coupled with Table I of 30 C.F.R. § 100.3,
indicates that Northshore is a medium-sized operator, and I so find.

History of Violations

Northshore’s history of violations is reflected in reports from MSHA’s database, typically
referred to as “R-17s.” Ex. S-13. One of the reports lists violations issued at Northshore Mine
and reflects that 21 violations became final between April 2008 and April 2010. I accept the
figures reflected in the report as accurate. However, the overall violation history set forth in the
exhibit is deficient in that it provides no qualitative assessment, i.e., whether the number of
violations is high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.

Qualitative violations’ history information can often be found on the form reflecting
calculations of the proposed assessments, which are usually filed with the petition. However, the
assessment form for the two litigated violations did not reflect information on overall or repeat
violation history because the penalties were specially assessed. Other citations, issued in the same
time frame for violations of the same standards, reflect an assessment of 8-10 points for overall
violation history and no points for repeat violations.

I find that Northshore’s overall history of violations, as relevant to these violations, was
low to moderate, and should not be considered an aggravating factor in the penalty assessment
process.

Docket No. LAKE 2010-964M

Citation No. 6493359 is affirmed as an S&S violation. However, it was not an
unwarrantable failure to comply with the safety standard, and the injury that would have been
reasonably expected to occur was lost workdays or restricted duty. It will be modified to a
citation issued pursuant to section 104(a) of the Act. A specially assessed civil penalty in the
amount of $24,600.00 was proposed for this violation. Considering that the violation would not
have resulted in a fatality, that it was not an unwarrantable failure, and that the level of negligence
remains high, a regular assessment would have resulted in a penalty in the range of $1,500.00.
Considering the factors itemized in section 110(i) of the Act, and the diminished likelihood that a
special assessment would have been deemed appropriate for the violation as modified, I impose a
penalty of $4,500.00 for this violation.

Order No. 6493367 is affirmed as a violation. However, it was not an unwarrantable
failure to comply with the safety standard and therefore, the order will be modified to a section
104(a) citation. A specially assessed civil penalty in the amount of $4,900.00 was proposed for
this violation. A regular assessment would have resulted in a penalty in the range of $1,200.00.
Considering the factors itemized in section 110(i) of the Act, and the diminished likelihood that a
special assessment would have been deemed appropriate for the violation as modified, I impose a
penalty of $2,500.00 for this violation.

The penalties imposed above, which total $7,000.00, are lower than the $29,500.00 in
penalties assessed for the violations for which Northshore was found liable. The reductions are
the result of findings of lesser gravity, that the violations were not the result of Northshore’s
unwarrantable failures, and the diminished likelihood that special assessments would have been
deemed appropriate.

ORDER

Based on the foregoing, it is ORDERED that Citation No. 6493359 and Order No.
6493367 are amended to citations issued pursuant to section 104(a) of the Act, and are
AFFIRMED, as amended;

It is FURTHER ORDERED that the petition, in Docket No. LAKE 2012-06-M, lodged
against Robbie M. Wills, in his individual capacity, is hereby DISMISSED; and

It is FURTHER ORDERED that Respondent, Northshore Mining Company, pay civil
penalties in the amount of $7,000.00 within 45 days of this order.

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge 

Distribution (Certified Mail):

Travis Gosselin, Esq., U.S. Department of Labor, 230 South Dearborn Street, Room 844,
Chicago, IL 60604

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite
1500, Pittsburgh, PA 15222