Secretary of Labor, MSHA v. Northshore Mining Company

Read the official release (fmshrc.gov)

Plain-English summary

After the parties settled 65 citations, four citations remained for trial at Northshore Mining Company's Minnesota taconite plant. Judge John Kent Lewis affirmed violations involving a deteriorated conveyor guard, material accumulations, an uncovered energized junction box, and a wet walkway. He kept the S&S findings for the guard, junction box, and wet walkway but reduced the guard citation's negligence from moderate to low. He changed the other accumulation citation from reasonably likely and S&S to unlikely and non-S&S. The four modified citations carried total penalties of $17,711.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14112(a)(1), 56.20003(a), 56.12032, and 56.20003(b)
• Outcome: Four citations were affirmed, two were modified, and penalties totaling $17,711 were assessed.
• Key point: Actual work patterns and exposure determine S&S gravity, while inspection and maintenance practices may mitigate negligence even when a violation remains 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

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHE: 412-920-7240
/ FAX: 412-928-8689

February 19, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Petitioner,

v.

NORTHSHORE
MINING COMPANY

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2011-818-M

A.C. No. 21-00831-255564

Docket No. LAKE 2011-834-M

A.C. No. 21-00831-258448

Docket No. LAKE 2012-499-M

A.C. No. 21-00831-283699

Docket No. LAKE 2012-536-M

A.C. No. 21-00831-283699

Docket No. LAKE 2012-728-M

A.C. No. 21-00831-292533

Mine: Northshore Mining Company

DECISION AND ORDER

Appearances:              
Timothy Turner, Esq., U.S Department of Labor, Office of the Solicitor, Denver,
CO for the Secretary

Arthur
Wolfson, Esq., Jackson Kelly, PLLC, Pittsburgh, PA for Respondent

Before:

Judge Lewis

STATEMENT
OF THE CASE

These
cases are before the undersigned Administrative Law Judge on Petitions for Assessment
of Civil Penalty filed by the Secretary of Labor against Respondent, Northshore
Mining Company (�Respondent� or �Northshore�), pursuant to Section 104 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. �815(d). A hearing was
held in Duluth, Minnesota on August 27, 2013. The parties subsequently
submitted post-hearing briefs.

PROCEDURAL
HISTORY

Between April 2011 and May 2012, MSHA Inspectors William H. Soderlind, Steven
E. Swenson, and Robert A. Marincel conducted several inspections of Northshore
Mining Company and issued numerous citations.  Northshore Mining Company
contested many of these citations, 69 of which were placed in five civil
penalty dockets (LAKE 2011-818, LAKE 2011-834, LAKE 2012-499, LAKE 2012-536,
and LAKE 2012-728). The total assessed penalty for those civil penalty
proceedings was $146,290.00. On May 9, 2013 a hearing was set in this matter.
As the date for the hearing approached, the parties settled 65 of the 69
citations (including all of the subject citation issued by Inspectors Swenson
and Marincel). The parties filed a Motion to Approve Partial Settlement, which
was granted on February 11, 2014. The remaining citations were Citation No.
6564267 (LAKE 2011-834), Citation No. 6564223 (LAKE 2011-818), Citation No.
6564235 (LAKE 2011-818), and Citation No. 6564248 (LAKE 2011-818). The total
assessed penalty for the remaining citations was $20,327.00. On August 28, 2013
a hearing was held on these remaining citations.

STIPULATIONS

The parties have
entered into several stipulations, admitted as Parties� Joint Exhibit 1.[1]
Those stipulations include the following:

1.      Northshore Mining
Company is engaged in mining operations in the United States, and its mining
operations affect interstate commerce

2.      Northshore Mining
Company is the above-referenced mine. Northshore Mining Company is an
�operator� as defined in Section 3(d) of the Federal Mine Safety and Health Act
of 1977, as amended (Mine Act), 30 U.S.C. 803(d).

3.      Northshore Mining
Company is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. �801 et. seq.

4.      The Administrative
Law Judge has jurisdiction in this matter.

5.      The subject
citations and orders were properly served by a duly authorized representative
of the Secretary upon an agent of Northshore Mining Company on the dates and
places stated therein, and may be admitted into evidence for the purpose of
establishing their issuance.

6.      The exhibits to
be offered by Northshore Mining Company and the Secretary are stipulated to be
authentic but no stipulation is made as to their relevance or the truth of the
matters asserted therein.

7.      The assessed
penalties, if affirmed, will not impair Northshore Mining Company�s ability to
remain in business.

8.      MSHA Inspector
William Soderlind was acting in his official capacity and as an authorized
representative of the Secretary of Labor when aforesaid citations and order
were issued.

Joint
Exhibit 1 (see also Transcript at 6).[2]

Citation
No. 6564267

I.                  
ISSUES

With respect to Citation No. 6564267, the issues to be determined are whether
Respondent�s alleged actions on May 3, 2011 were a violation of �56.14112(a)(1)
and, if so, whether that violation was significant and substantial (�S&S�),
whether it was reasonably likely to result in lost workday/restrict duty injury
to one miner, whether it was the result of moderate negligence, and the
appropriate penalty for the violation.

II.               
SUMMARY OF
TESTIMONY

On May 3, 2011 Inspector William
Soderlind issued Citation No. 6564267 for a guard violation (GX-2).[3] (Tr. 18).
Soderlind issued Citation No. 6564267 because he observed a violation of
56.14112(a)(1) in the pellet plant which he believed could endanger the safety
of miners. (Tr. 20). That standard states that guards must be constructed and
maintained to withstand the vibration, shock, and wear to which they are
subjected during normal mining operations. (Tr. 20).

Soderlind was at Respondent�s
plant during May and April of 2011 for a regular, full inspection.[4] (Tr. 17).
Respondent�s employee Brian Hill accompanied Soderlind during the inspection.[5] (Tr. 103).
During the inspection Soderlind took handwritten contemporaneous notes, which
he reviewed during the hearing (GX-3). (Tr. 19, 83). He also had general field
notes (RX-17). (Tr. 83-84). When Soderlind observed a condition he would enter
it into his general field notes and then turn to the back pages of his note
book to write his citation notes. (Tr. 84).

The specific violative condition
cited was a guard on the 124 conveyor that had come apart in places leaving
jagged metal stuck out where it could cut a miner. (Tr. 20, 28, 103-104). This
conveyor was in the pelletizer and elevated eight feet off the ground. (Tr.
104, 113). The hanging guard was four or five inches from another portion of
the guard, which itself was six inches from the tail pulley. (Tr. 23-24).
Originally, the guard had been temporarily welded, or �tacked,� in place. (Tr.
22). Another guard had fallen completely off the 124 conveyor and was hanging
partway into the walkway. (Tr. 20, 22). The cited condition exposed the pulley.[6] (Tr. 22).

The guards could have come apart
from the vibration of equipment, contact from spilled material, corrosion,
improper construction, or other reasons. (Tr. 21). When the conveyor is running
there is some vibration and shaking. (Tr. 112). It would be hard to say how
much the pulley would vibrate when in operation. (Tr. 23). The area had wet
processes, which could have caused the guard to corrode and separate. (Tr. 26).
Water and oxygen cause guards to wear, so Respondent had to continually upgrade
their guards. (Tr. 26).

During the inspection, the
conveyor was running and the tail pulley was spinning. (Tr. 22-23, 112). A
piece of the guard was hanging while the belt was running. (Tr. 112). If the
hanging guard were to contact the tail pulley it could shoot out into the
walkway or under the conveyor. (Tr. 24). The guard could get shot out after
getting pulled into the pulley or it could just fall. (Tr. 85). The walkway was
right next to the pulley. (Tr. 24, 85, 104). The walkway was about 30 inches
wide and went all the way around the tail pulley. (Tr. 104). It would be
traveled a couple of times per shift, mostly by operators. (Tr. 104).

Further, there was a pile of
taconite pellets by the tail pulley. (Tr. 24-25). The walkway was grated so
pellets should have fallen through. (Tr. 86, 113). However, sometimes the
grates clog and accumulations occur. (Tr. 86-87). Soderlind had seen places in
the plant where pellets had to be climbed over. (Tr. 33). He had issued
citations for miners climbing past a tail pulley where pellets had spilled.
(Tr. 33). Soderlind testified that pellets were removed by shoveling them out
or onto the conveyor. (Tr. 25, 85). If a shovel contacted the pulley it could
strike the miner, pull the miner in the pulley, or knock a miner down. (Tr.
25). Hill testified that pellets were removed with an air lance, not a shovel.
(Tr. 113). The pellets that day were on a structured beam, not the floor. (Tr.
113-114). Soderlind had seen miners shoveling pellet next to an energized
pulley, but not in this instance. (Tr. 25). Respondent sold the pellets, so
they would try to get them out quickly. (Tr. 87, 96-97). It could be an arduous
process to shut down the belt, lock it out, and tag it out. (Tr. 97). The belts
are crucial to production and shutting down the belt could shut down a whole
section of the mine. (Tr. 97). As a result, Soderlind testified that if the
guards are in place, they just shoveled the product back on. (Tr. 86, 97-98).

Finally, Soderlind testified
there was sharp metal sticking into the walkway. (Tr. 26). There was also an
opening in the guard itself. (Tr. 28). The metal in these areas was sharp
enough to break the skin if someone fell or rubbed against it. (Tr. 26, 28).
Soderlind conceded that there were no tripping hazards in the area and there
were handrails. (Tr. 86). A miner might contact the guard while cleaning,
traveling, or greasing the pulley, possibly while carrying tools. (Tr. 27).
Hill testified that the edge on the guarding did not protrude into the walkway.
(Tr. 106). There would be no reason to contact the guarding edges. (Tr. 106).
Soderlind testified that some miners wore latex gloves, but they did not
provide protection. (Tr. 26-27).  Hill testified that most of the miners,
including operators, wore strong leather gloves. (Tr. 107, 114, 117). The guard
would not easily puncture those gloves. (Tr. 107). They would only go through
the leather if someone fell on the edges and there was no tripping hazard. (Tr.
107). Hill did not recall any lost-time injuries from hand cuts at the plant.
(Tr. 108).
Latex gloves were
only used when hosing the swamp or in the lab. (Tr. 114). Respondent�s
employees were also trained to keep their hands and limbs away from moving
equipment. (Tr. 106-107). However, the area could be hot and miners sometimes
had exposed arms. (Tr. 118).

The citation was marked
�reasonably likely� because the guard was damaged in several places and miners
travelled in the area to apply grease, to examine belts, or to walk through.
(Tr. 30, 87). The examinations were required under 56.18002, which applies to
working areas. (Tr. 87-88). If the condition was not abated, it would get worse
and a miner could contact the sharp edge, receiving a laceration. (Tr. 27, 30).
It was possible, but less likely, that a miner could contact the shaft of the
tail pulley. (Tr. 27, 30, 105).  Hill stated the area was only traveled a
couple of times a day, the walkway was adequate, and structure blocked
everything except an 8-inch opening 20 inches off the walkway. (Tr. 105-106). Further,
the tail pulley was recessed four or six inches behind the guarding. (Tr. 106).

The citation was also marked
�lost workdays or restricted duty,� because someone could cut their hand or leg
during a fall or get a puncture wound requiring a tetanus shot or medical
attention. (Tr. 30-31). A miner contacting the rotating shaft could suffer
permanently disabling injury. (Tr. 31). The citation was marked as affecting
one person because it was unlikely that more than one person would injure
themselves on the same guard at the same time. (Tr. 31).

The citation was marked S&S
because there was reasonable likelihood of an injury that was at least lost
workday/restricted duty. (Tr. 31). The specific hazard was the loose guard with
jagged edges in the walkway. (Tr. 32). The deteriorating guard and the high
traffic created the likelihood of injury. (Tr. 32). The guard had corroded,
which was evidence that the condition had existed for months. (Tr. 32). Under
normal mining conditions there was a strong likelihood that a miner would be
injured. (Tr. 32-33). This is especially true in light of the pellets in the
walkway. (Tr. 33).

The citation was marked as
�moderate� negligence. (Tr. 33). Moderate negligence exists where there are
some mitigating factors. (Tr. 33). Soderlind considered violation history, the
location, visibility, and obviousness. (Tr. 34). Soderlind did not believe
Respondent knew of this condition, but should have. (Tr. 34). Respondent�s
miners are a �self-directed� workforce meaning the individual miners are
supposed to tell management about any issues they come across. (Tr. 34). Low
negligence would be in a remote area. (Tr. 34).

Respondent terminated the
citation by replacing the guard with a one that was better constructed. (Tr. 34-35).
The new guard had a large metal frame around it. (Tr. 28-29).

III.            
FINDINGS OF
FACT AND CONCLUSIONS OF LAW

The
findings of fact are based on the record as a whole and the Administrative Law
Judge�s careful observation of the witnesses during their testimony. In
resolving any conflicts in the testimony, the Administrative Law Judge has
taken into consideration the interests of the witnesses, or lack thereof, and
consistencies, or inconsistencies, in each witness�s testimony and between the
testimonies of the witnesses. In evaluating the testimony of each witness, the
Administrative Law Judge has also relied on his demeanor. Any failure to
provide detail as to each witness�s testimony is not to be deemed a failure on
the Administrative Law Judge�s part to have fully considered it. The fact that
some evidence is not discussed does not indicate that it was not considered. See
Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)
(administrative law judge is not required to discuss all evidence and failure
to cite specific evidence does not mean it was not considered).

1.      The Secretary Has Carried His
Burden Of Proof By A Preponderance Of The Evidence That 30 C.F.R.
�56.14112(a)(1) Was Violated.

On
May 3, 2011, Inspector Soderlind issued a 104(a) Citation, No. 6564267, to
Respondent. Section 8 of that Order, Condition or Practice, reads as follows:

Pellet
Plant � The tail pulley guard for the 124 conveyor was corroded and falling
apart in several areas. Sharp jagged metal edges where the expanded metal had
separated were found on all sides of the guard. This condition exposes miners
to laceration type injuries due to unexpected contact with the jagged metal.

(GX-2).

The cited standard, 30 C.F.R. �56.14112(a)(1) (�Construction and Maintenance of
Guards�), provides the following:

(a)    Guards shall be constructed and
maintained to�

(1)   Withstand the vibration, shock,
and wear to which they will be subjected during normal operation; and

30
C.F.R. �56.14112.

Inspector
Soderlind credibly testified that the cited guard was coming apart. (Tr. 20,
28, 103-104). Specifically, corrosion and vibration had caused the guard to break
down. (Tr. 21). When cited, the guard had ragged edges and was no longer
properly blocking the tail pulley. (Tr. 20, 22, 28, 103-104).

In
its brief, Respondent did not argue against the validity of Citation No.
6564267. The Administrative Law Judge finds that Respondent conceded that it
violated the standard. In light of this fact, and the evidence presented, the
Administrative Law Judge finds that this citation was valid.  

2.      Considering The Record In Toto
And Applying Applicable Case Law, The Violation Was Reasonably Likely to Result
in a Lost Workday/Restricted Duty Injury And Significant And Substantial In
Nature

Inspector
Soderlind marked the gravity of the cited danger in Citation No. 6564267 as
�Reasonably Likely� to result in �Lost Workday/Restricted Duty� injury to one
person. (GX-2). These determinations are supported by a preponderance of the
evidence.

The
Mine Act requires that �gravity of the violation� be considered in assessing a
penalty. 30 U.S.C. �820. The Secretary has promulgated a three-factor inquiry
to determine the gravity of a citation for purposes of determining the penalty.
Those factors are:

[T]he
likelihood of the occurrence of the event against which a standard is directed;
the severity of the illness or injury if the event has occurred or was to
occur; and the number of persons potentially affected if the event has occurred
or were to occur.

30
C.F.R. �100.3(e).

The event against which the instant standard, 30 C.F.R. �56.14112(a)(1), is directed
is contact by a miner with moving conveyor pieces or with damaged pieces of the
guard. The particular guard here was designed to prevent contact with the tail
pulley of the 124 conveyor. (GX-2).  Inspector Soderlind credibly
testified that given the state of the cited guard, contact with the conveyor,
or the broken guard itself, was reasonably likely. Specifically, Soderlind
testified that the cited area was next to a walkway where miners worked and
traveled on a regular basis. (Tr. 104, 30, 81). In fact, the broken guard was
sticking out into the walkway and miners shoveling pellets onto the belt could
have contacted the belt with a shovel. (Tr. 20, 25, 28, 85-86, 97-98, 103-104).
Given this exposure, the Administrative Law Judge finds that contact with the
broken guard or moving pieces of the conveyor was reasonably likely to occur.

Soderlind
also credibly testified that if a miner were to contact the conveyor or the
broken guard, lost workday/restricted duty injuries would occur to one miner.
Specifically, he testified that under continued normal mining conditions a
miner could place his hand on the guard and receive a laceration. (Tr. 26-28).
Further, miners often walked through the area in their shirtsleeves. (Tr. 118).
As a result, miners could walk past the cited area and brush their arms against
the damaged guard, resulting in lacerations. In addition to the risk from
touching the guard, Soderlind credibly testified that as time passed and the
guard�s condition became worse, the guard could be pulled into the pulley and
then shoot out into the walkway, injuring a miner. (Tr. 85). Finally, miners
could be injured by their shovels when cleaning pellets. (Tr. 25). All of these
conditions would only affect one miner. (Tr. 31). A preponderance of the
evidence supports the Inspector�s findings.

Respondent
offered several arguments asserting that an accident was unlikely. However, as
Respondent discussed those arguments in relation to the S&S designation,
they will be discussed infra.

Well-settled
Commission precedent sets forth the standard used to determine if a violation
is S&S. A violation is S&S �if, based upon 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.� Cement Div., National Gypsum Co., 3 FMSHRC 822, 825 (April
1981). The Commission later clarified this standard, explaining:

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.

Mathies
Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984).

With
respect to the first element, the underlying violation of a mandatory safety
standard, it has already been established that Respondent violated 30 C.F.R.
�56.14112(a)(1).

With
respect to the second element of Mathies, a discrete safety hazard �
that is a measure of danger to safety � contributed to by the violation �
Inspector Soderlind credibly testified that the violation, a damaged guard,
contributed to the safety hazard of a miner grasping or brushing the broken
guard or coming into contact with the energized conveyor pulley.

The
Secretary also argued that contribution to a discrete safety hazard should be
considered in light of the frequency with which the cited area is accessed, the
position of the now exposed part in relation to the miner, and the general
condition of the walkway next to the moving part exposed by the faulty guard. (Secretary�s
Post-Hearing Brief at 11, citing Carder, Inc., 27 FMSHRC 839, 844
(Nov. 2005)(ALJ Manning); Bachman Sand & Gravel, 34 FMSHRC 226, 231
(Jan. 2012)(ALJ Miller); and Baker Rock Crushing Co., 2010 WL 3616493,
*8 (Aug. 2010) (ALJ Barbour)). Inspector Soderlind credibly testified that the
area experienced heavy foot traffic and was accessed regularly for
examinations. (Tr. 30, 87). He also testified, and the photographs confirmed,
that the exposed tail pulley was directly next to the walkway. (Tr. 22-24, 85,
104, 112)(GX-4, p.1). Finally, the inspector testified that there were slippery
pellets in the walkway creating an additional tripping hazard. (Tr. 24-25, 33, 86-87,
113).

Respondent
produced several arguments for the proposition that this condition did not
contribute to a safety hazard, none of which are compelling.

First, Respondent argued under
normal mining conditions, no one would contact the jagged edges of the guard. (Respondent�s
Post-Hearing Brief at 5-6). It argued that the edges did not protrude into
the walkway, that edges were inside the waterline between the guarding and the
walkways, and that there was no reason for a miner to reach toward these jagged
edges. (Id. at 6). The Administrative Law Judge credits the Inspector�s
testimony that the jagged guard was exposed in the walkway and that miners
could touch or brush the jagged edges. (Tr. 20, 22, 26). The photographs,
specifically GX-4, p. 2, support this testimony. While it was possible that
some of the jagged edges were behind the waterline, the Administrative Law
Judge finds that under normal mining conditions miners would eventually contact
these jagged edges.

Respondent
also argued that miners were trained to stay away from moving parts. (Respondent�s
Post-Hearing Brief at 6). There is no reason to doubt Respondent�s
assertion that the miners received this training. However, even if it is true,
that does not change the significant and substantial nature of this violation.
If training were sufficient, properly maintained guards would not be required
under 30 C.F.R. �56.14112(a)(1). The standard exists because MSHA determined
that, even in light of the extensive training miners are given, miners could be
injured by exposed moving parts. Whether through inadvertence or accident, even
trained miners could contact the moving pieces if no guard were in place. As a
result, the hazard still existed despite the training.

Finally,
Respondent argued that there was no tripping hazard in the cited area. (Respondent�s
Post-Hearing Brief at 6 citing Baker Rock Crushing Co., 32 FMSHRC at
976 and Carder, Inc., 27 FMSHRC at 844). As discussed supra,
there were pellets in the walkway in this area. (Tr. 24, 25, 86-87, 113). These
marble-like pellets constituted a tripping hazard. However, even if there were
no pellets in this area, this would still be S&S. The only requirement of
the second prong of Mathies is that the violation contribute to a
discrete safety hazard. While a tripping hazard may create a greater likelihood
of the hazard being realized, the fact that the guard was deficient had already
made an accident more likely. Therefore, the second prong of Mathies is
met.

The
third element of the Mathies test � a reasonable likelihood that the
hazard contributed to will result in an injury � was also met. The
preponderance of the evidence establishes that the hazard contributed to in
this matter would be reasonably likely to result in injury.

The
Commission clarified the third element of the Mathies test in Musser
Engineering, Inc., and PBS Coal 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, it clarified that the �Secretary need
not prove a reasonable likelihood that the violation itself will cause injury.�
Id. The Commission concluded that the Secretary had presented sufficient
evidence that miners who broke through into a flooded adjacent mine would face
numerous dangers of 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); Blue Bayou
Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).

If
the hazard contributed here were realized, specifically if a miner contacted
the guard or moving parts, an injury would be reasonably likely. If the miner
contacted the jagged edge of the guard, he would experience lacerations and
perhaps infection. (Tr. 27, 30-31). If the guard were pulled into the tail
pulley and shot out, a miner would experience puncture wounds or lacerations.
Finally, if the miner�s shovel were to contact the belt, it would result in
striking injuries.

Respondent
made several arguments attempting to show that there is no likelihood of injury
from the cited condition. None of those arguments are compelling.

First,
Respondent argued that miners would not receive lacerations from contacting the
jagged guarding because they wore leather gloves. (Respondent�s Post-Hearing
Brief at 7). The Administrative Law Judge credits the testimony of
Inspector Soderlind that miners often wore latex gloves, which would not
provide protection from lacerations. (Tr. 26-27). Further, Respondent�s
witness, Hill, testified that even wearing leather gloves, a miner could be
injured if he fell onto the guarding, because the leather gloves could be
punctured . Given the pellets littering the floor, a fall was a real
possibility. Also, regardless of leather gloves, other parts of miners� bodies,
including their arms, were exposed without any protection. (Tr. 118).

Next,
Respondent argued that there was no possible injury caused by the gap in the
guarding exposing the tail pulley. (Respondent�s Post-Hearing Briefs at
7-8). Specifically, Respondent argued that the pellets shown in the photographs
were shown on the pillow block inside of the guard and that in order to shovel
the belt, the conveyor would have be de-energized. (Id.). The
Administrative Law Judge credits the testimony of the Inspector that pellets
accumulated in the cited area and that miners loaded the pellets onto energized
conveyors. (Tr. 24-25, 85). Even if the pellets photographed were on the pillow
block rather than the walkway, under normal mining conditions pellets would
eventually accumulate on the walkway and need to be shoveled.

Finally,
Respondent argued that Soderlind�s testimony regarding injury dealt solely with
what �could� happen if the miner contacted the moving parts of the pulley. (Respondent�s
Post-Hearing Brief at 9). Specifically, when asked what would happen if the
guard contacted the pulley, Soderlind said that the belt could shoot into the
walkway, it could go under the conveyor, or anything could happen. (Tr. 24). It
argues that something that merely could happen is not sufficient to support an
S&S designation. (Respondent�s Post Hearing Brief at 9 citing
Wolf Run Mining, 32 FMSHRC 1669, 1677 (Dec. 2010), Texasgulf 10
FMSHRC 498, 500-1 (April 1998); and Zeigler Coal, 15 FMSHRC 949, 952-54
(Jun. 1993)). Respondent is correct that the Commission has consistently held
that dangers that simply �could� happen are insufficient to support an S&S
designation. While the Administrative Law Judge believes that it is somewhat
likely that this guard would eventually contact the pulley and then shoot into
the walkway, the evidence does not support a finding that such an event is
reasonably likely. However, the S&S designation is not based solely on the
danger posed by the guard shooting into the walkway. The Administrative Law
Judge finds that an injury was reasonably likely to result from a miner falling
on or grasping the broken guard or contacting the moving parts of the pulley.
As a result, the cited condition meets the third prong of the Mathies
test.

Under
Mathies, the fourth and final element that the Secretary must establish
is that there was a �reasonable likelihood that the injury in question will be
of a reasonably serious nature.� Mathies Coal Co., 6 FMSHRC at 3-4; U.S.
Steel, 6 FMSHRC at 1574. The Administrative Law Judge finds that that the
kinds of injuries expected here, lost workday/restricted duty injuries from
lacerations or striking, are reasonable serious in nature. See e.g. Carmeuse
Lime & Stone, Inc., 29 FMSHRC 284, 295-296 (Mar. 2007)(ALJ Hodgdon) and
Lexicon, Inc., 24 FMSHRC 1014, 1022-23 (Nov. 2002)(ALJ Hodgdon).

Respondent
argued that any lacerations that results from a miner contacting broken
guarding would be minor. (Respondent�s Post-Hearing Brief at 8). It
noted there was no history of lost workday/restricted duty injury from cuts to
the hand at the plant. (Id.).  The Administrative Law Judge credits
the testimony of the Inspector that the lacerations to be expected from a fall
onto the guard would be of a reasonably serious nature. (Tr. 30-31). The fact
that Hill was not aware of lost workday or restricted duty injuries at the
plant does not change this determination. The issue is whether the danger here
presented a possibility for serious injury, not whether there was a history of
these accidents. Respondent�s good fortune in avoiding injuries in the past
does not affect the S&S nature of this citation.

As
a result of these factors, the Administrative Law Judge finds that the
Secretary proved the violation was S&S by a preponderance of the evidence.

3.      Respondent�s Conduct Displayed
�Low� Rather than �Moderate� Negligence.

In
the citation at issue, Inspector Soderlind found that the operator�s conduct
was moderately negligent in character. (GX-2).

Standard
30 C.F.R. �100.3(d) provides the following:

(d) Negligence. Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to protect miners
against the risks of harm. Under the Mine Act, an operator is held to a high
standard of care. A mine operator is required to be on the alert for conditions
and practices in the mine that affect the safety or health of miners and to
take steps necessary to correct or prevent hazardous conditions or practices.
The failure to exercise a high standard of care constitutes negligence. The
negligence criterion assigns penalty points based on the degree to which the
operator failed to exercise a high standard of care. When applying this
criterion, MSHA considers mitigating circumstances which may include, but are
not limited to, actions taken by the operator to prevent or correct hazardous
conditions or practices.

In 30 C.F.R. �103(d), Table X, the category of high negligence is described
thusly: �The operator knew or should have known of the violative condition or
practice and there are no mitigating circumstances.� Conversely, moderate
negligence is shown when �[t]he operator knew or should have known of the
violative condition or practice, but there are some mitigating circumstances.�
Low negligence is reserved for situations where there are �considerable�
mitigating circumstances.

With respect to the instant citation, Respondent did not have actual knowledge
of the cited condition. Even Inspector Soderlind admitted as much. (Tr. 34).
Therefore, the question is whether Respondent should have known the condition
existed. A preponderance of the evidence shows that it should have.

Inspector Soderlind credibly testified that that the cited condition was open
and obvious. (Tr. 34). Further, he stated that routine checks of the area would
have discovered this condition for correction. (Tr. 33-34). Finally, Respondent
would have been aware that this guard was in a wet, vibrating location and that
these conditions could cause corrosion. (Tr. 26). Therefore, Respondent should
have known the condition existed.

Respondent argued that it should not have known the cited condition existed
because the cited area was not a �working area� within the meaning of the Act
and no examination of that area was necessary. (Respondent�s Post-Hearing
Brief at 9). For the purposes of the Act, �working place� means any place
in or about a mine where work is being performed.[7] 30 CFR �
56.2. However, the Act also requires that �safe means of access shall be
provided and maintained to all working places.� 30 C.F.R. � 56.11001. It is
uncontested that a walkway went directly past the tail pulley. (Tr. 24, 85,
104). Even if Respondent is correct that the tail pulley was not a working area
(a dubious claim), the fact remains that walkways between working places must
also be examined and maintained. Therefore, Respondent should have known about
the condition of the cited guard as it was directly next to a walkway.

While Respondent should have known about the condition of the cited guard,
there are mitigating circumstances. Inspector Soderlind conceded that those
mitigating circumstances existed. Specifically, he testified that Respondent
did not have actual knowledge of the cited condition and Respondent�s employees
were a self-directed workforce. (Tr. 34). The Secretary felt that these
mitigating circumstances dictated a finding of �moderate� negligence. (GX-2).
However, in addition to those cited by the inspector, the Administrative Law
Judge finds another mitigating factor. While this was a working area of the
mine and examinations were required, the area was still relatively remote.
Miners were not working in this area constantly and when they were in the area
they were passing through. As a result, these mitigating circumstances are
better characterized as �considerable� and a finding of �Low� negligence is
appropriate.

4.     
Penalty

Under
the assessment regulations described in 30 CFR �100, the Secretary proposed a
penalty of $3,143.00 for Citation No. 6564267. A recent Commission decision, Sec.
v. Performance Coal Co., (Docket No. WEVA 2008-1825 (8/2/2013) reaffirmed
that neither the ALJ nor the Commission is bound by the Secretary� proposed
penalties. (see also 30 U.S.C. �820(i) and 29 C.F.R. �2700.30(b)).
However, the Commission in Performance Coal, also held that, although
there is no presumption of validity given to the Secretary�s proposed
assessments, substantial deviation from the Secretary�s proposed assessments
must be adequately explained using �110(i) criteria. (Id. at p. 2). (see
also Cantina Green, 22 FMSHRC 616, 620-621 (May 2000)). The ALJ finds that
a substantial deviation from the Secretary�s proposed assessment is warranted
herein and will evaluate the factors contained in 30 U.S.C. �820(i) to explain
that deviation. Those factors are as follows:

(1)
The Operator�s history of previous violations �  Inspector Soderlind
credibly testified that Respondent had a history of these violations. (Tr. 34).
Respondent�s violation history supports this testimony. (GX-1).

(2) The appropriateness of the
penalty compared to the size of the Operator�s business � Northshore Mining
Company has 770,129 yearly mine hours and Respondent has 2,179,873 yearly
controller hours. According to MSHA�s penalty assessment guidelines this gives
United Plant 10 �mine size points� out of a possible 15 and Respondent seven
�controller size points� out of a possible 10. see 30 CFR � 100.3(b). Thus,
Respondent is a large operator with an above-average sized plant.

(3)
Whether the Operator was negligent � As previously shown, Respondent�s
negligence is better characterized as �Low� rather than �Moderate� negligence

(4)
The effect on the Operator�s ability to remain in business � The parties have
stipulated that the Orders at issue here would not affect Respondent�s ability
to remain in business. (JX-1)

(5)
The gravity of the violation � As previously shown, the gravity of the cited
danger was reasonably likely to result in lost workday and restricted duty
injuries to one miner. Further the condition was S&S.

(6)
The demonstrated good-faith of the person charged in attempting to achieve
rapid compliance after notification of a violation � The evidence shows the
condition was abated rapidly and in good faith.

In light of the Administrative Law Judge�s decision to modify the negligence
from �Moderate� to �Low� a reduction in the assessed penalty is appropriate.
Therefore, Respondent is hereby ORDERED to pay a civil penalty in the
amount of $2,000.00 with respect to this violation.

Citation
No. 6564223

I.                  
ISSUE

With respect to Citation No. 6564223, the issues to be determined are whether Respondent�s
alleged actions on April 6, 2011 were a violation of �56.20003(a) and, if so,
whether that violation was significant and substantial (�S&S�), whether it
was reasonably likely to result in lost workday/restrict duty injury to one
miner, whether it was the result of moderate negligence, and the appropriate
penalty for the violation.

II.               
SUMMARY OF
TESTIMONY

On
April 6, 2011 Inspector Soderlind issued Citation No. 6564223 (GX-6) for a
violation of 56.20003(a) which requires working areas of the mine, travel ways,
passageways, store rooms, and service rooms be kept clean and orderly.[8] (Tr. 35-38).
Specifically, the base of the #10 Silo was open, allowing miners to come into
contact with old equipment and unsafe conditions for foot travel. (Tr. 37, 108,
122). Pellets were stored in the top of the silo and various tools and parts
were stored on the shelves in the bottom of the silo. (Tr. 38, 43, 108, 114,
122, 144). There were also loose pellets on the ground. (Tr. 41). Pellets are
slippery when spread out, less slippery (but still capable of causing falls)
when piled up. (Tr. 41). There was no lighting in the silo. (Tr. 42). It would
sometimes be lit by the sun, but three-quarters of the day would be dark. (Tr.
42). Tim Aijala conceded that the inside of the silo was a mess.[9] (Tr. 124).
There were pallets laying around and dried mud on the floor. (Tr. 124).

If an area was sealed off, MSHA
would not issue citations. (Tr. 49). MSHA requires operators to barricade an
area if it wishes to keep miners out, but there is no specific standard for how
to make the barrier. (Tr. 38-39). A barricade is supposed to physically prevent
people from entering. (Tr. 98). Here, Respondent had two one-inch diameter
metal bars four feet apart that were welded to the garage door for the silo to
block access. (Tr. 39, 44, 109, 124). The top rail was about four feet high and
the lower rail was about two feet high. (Tr. 50-51). The bars across the silo
entrance were installed a year and a half to two years before the citation.
(Tr. 123-124, 144). There was no sign saying that miners should not enter. (Tr.
44, 149). Aijala testified that miners would be less likely to enter an area
with a sign, but believed the barrier would prevent entry. (Tr. 149). Soderlind
testified that while the barrier was there, it was clear that it was not
preventing miners from going inside. (Tr. 43-44, 98).

Soderlind knew the barrier was
not working because he looked into the silo from the entrance and saw
footprints on the ground.[10]
(Tr. 40-42, 98). Respondent intended to close the area and not have anyone in
the silo. (Tr. 98, 109). However, the barricade did not indicate that people
should not enter because there was no sign. (Tr. 98-99, 114). Hill and Aijala
did not believe anyone entered the silo after it was closed and knew it was
barred. (Tr. 109-110, 124). Everyone, including contractors, receive site
specific training, MSHA training, and new miner training. (Tr. 116-117).
However, Hill did not know if they were told not to enter the silo; that was
not his job. (Tr. 116). Not going through the barricade was common sense. (Tr.
117, 124). Before the citation, Aijala believed that the two bars were enough
to barricade the silo. (Tr. 148). At the hearing, he believed it was not. (Tr.
148).

To get inside, miners would have
to crawl through the barrier. (Tr. 45). While climbing in or out they would be
carrying something, as there was no other reason go there. (Tr. 45). There was
a hose in the walkway and pallets with various items on them. (Tr. 43).
Soderlind believed a miner would enter this silo, bent over, to get old idlers,
come-alongs, belts, and hoses.[11]
(Tr. 42-43, 51). However, Hill and Tim Aijala testified that nothing in the
silo would be needed in the course of normal operations. (Tr. 110, 123, 149).
Aijala knew the equipment was not in use because he had worked there 13 years
and knew a new storage area was built. (Tr. 123). Respondent no longer had the
equipment to use the idlers in Silo #10. (Tr. 123).

Hill testified that that the
footprints were not on the equipment in the silo, but only on the ground. (Tr.
111). The ground was flat and smooth. (Tr. 111). Aijala testified that from the
doorway he could not see footprints on equipment. (Tr. 125, 145-146). However,
he reviewed the photograph marked GX-8, p. 1 and saw dried footprints on either
a roll of rubber line techs or a small roll of old belt. (Tr. 146). He could
not tell if there were more than one set of footprints in the photograph. (Tr.
146). The photograph marked GX-8, p. 2 showed many sets of footprints on the
floor, but Aijala thought they were all old. (Tr. 147).

Soderlind believed the footprints
had been left recently; around a week. (Tr. 40). He knew this because the door
never closed and was exposed to the weather, including rain, snow, and wind.
(Tr. 40-41). These conditions would cover the footprints. (Tr. 41). All the
witnesses agreed this area was exposed to the elements. (Tr. 40-41, 115,
147-148). Soderlind believed miners entered this area a couple of times a
month, but it was hard to say for sure. (Tr. 43).

Hill conceded there were
footprints in the area. (Tr. 117). However, he believed the footprints were
dried and not fresh. (Tr. 110). New prints would be in mud and then old tracks
would dry up. (Tr. 110, 115).  He believed footprints probably occurred in
the fall when it was raining and then froze in winter. (Tr. 115-116). Hill also
testified that the silo was close to the water and the weather could change
often. (Tr. 116). Aijala observed some footprints hardened on the floor level.
(Tr. 124-125). Aijala did not believe that the footprints were very recent.
(Tr. 145). However, he could not say for certain if the footprints were from
when the silo was a storage room. (Tr. 144). It was possible that they had
occurred after the area was closed. (Tr. 144-145). In this area, mud usually
occurred from water seeping from the water system. (Tr. 145). That system was
shut down in November and kept off until spring. (Tr. 145). The footprints were
at least from the previous fall, though he could not say for sure. (Tr. 145).
 If miners entered the previous fall, someone would have entered after the
barrier was built. (Tr. 148-149).

The cited silo was along a
roadway. (Tr. 90). Soderlind could not see the footprints while driving. (Tr.
90). If he had not seen footprints he would not have issued the citation. (Tr.
48). Respondent had a policy against miners going through barred areas. (Tr.
49). Bars were common at the mine and, if Soderlind had not seen the
footprints, he would have assumed that, like other areas, no one entered. (Tr.
49). If miners had not entered, this would have been an acceptable barricade.
(Tr. 50).

There was a pile of pellets
(Respondent�s product) in front of the silo. (Tr. 90-91). The silo was near the
boat load-out area where the pellets were placed on ships for delivery. (Tr.
91). The piles of pellets would come and go. (Tr. 91). Hill testified that
there was not a lot of traffic in this area because when boats we reloading, no
one was permitted underneath the conveyors to the ship. (Tr. 108-109). Only
five or six guys worked in that area. (Tr. 114).

The instant citation was marked
�reasonably likely� because when miners access an area with clutter on the
floor (pallets, hoses, boards) and no lighting it was reasonably likely that
someone would trip and be injured. (Tr. 46-47).

The citation was marked �lost
workdays or restricted duty,� because a miner could sprain or strain a joint
when falling in this area. (Tr. 47). The citation was also marked as affecting one
person because it was likely only one person would be in that area at a time.
(Tr. 47).

The citation was marked S&S.
(Tr. 47). The specific hazard was the clutter in the walking and working space
in the silo. (Tr. 47). The clutter in the silo and the fact that miners entered
this area to get tools and parts created a tripping hazard. (Tr. 47-48). An
injury from such a trip would be likely if the condition was not corrected.
(Tr. 48).

The citation was marked as
�moderate� negligence because there was an attempt to barricade the area. (Tr.
48). However, the condition was open and obvious and Respondent a history of
housekeeping violations. (Tr. 48).

Aijala spoke with Inspector
Soderlind about the citation.[12]
(Tr. 125). He explained to the inspector that Respondent had put up the bars to
keep people out, that the mud was hardened, and that it was hard to determine
when someone was in the area. (Tr. 126).

Respondent terminated this
citation by putting up caution tape between the bars and ribbon that showed the
nature of the hazard. (Tr. 45-46, 50, 90, 125). They took expanded metal and
welded it between the existing bars to prevent people from climbing into the silo.
(Tr. 46, 125). The new barrier was sufficient and the silo and its contents
could not be accessed. (Tr. 46, 90, 149-150). A sign was added. (Tr. 99, 125).

III.           
FINDINGS OF
FACT AND CONCLUSIONS OF LAW

1.      The Secretary Has Carried His
Burden Of Proof By A Preponderance Of The Evidence That �56.20003(a) Was
Violated.

On
April 6, 2011, Inspector Soderlind issued a 104(a) Citation, Citation No.
6564223 to Respondent. Section 8 of that Order, Condition or Practice, reads as
follows:

Yards
& Docks � Silo #10 had boot tracks through the fines on the ground
indicating that this silo had been accessed. This silo had pallets, idlers, and
various other debris and parts cluttered throughout the area. There is no
walkway maintained and the silo is supposed to be barricaded by two bars across
the door opening. These bars are easily defeated and the area can be accessed
without much effort. There was no sign posted prohibiting entry, and no other
warning tape or other hazard type of warning present. This condition exposes
miners to trip and fall hazards resulting in injury

(GX-6).

Standard
30 C.F.R. �56.20003(a) (�Housekeeping�) provides the following:

(a)
Workplaces, passageways, storerooms, and service rooms shall be kept clean and
orderly;

30
C.F.R. �56.20003(a).

Inspector Soderlind credibly testified that the cited silo contained a large
amount of debris and used equipment. (Tr. 37, 41, 108, 122). Respondent�s
witnesses conceded that the area was dirty and not maintained. Therefore, the
only issue is whether the cited silo was a �storeroom� within the meaning of
the standard or if this was a barricaded area where maintenance was not
required.

A preponderance of the evidence supports a finding that this was a storeroom.
Inspector Soderlind credibly testified that this silo was used to store old
equipment and pallets. (Tr. 41). While he conceded that Respondent intended to
close this area, he also credibly testified that miners entered this area
either to retrieve equipment or to drop off old equipment. (Tr. 45, 98, 109).
The fact that miners were entering the area was evidenced by the fact that foot
prints were visible on the floor and equipment of the silo. (Tr. 40-42, 98).
Respondent�s witnesses conceded these points. (Tr. 111, 117, 146-147).
Therefore, the Administrative Law Judge finds that the cited area was an active
storeroom and that it was not being maintained in a clean and orderly fashion.

Respondent
offered several arguments to show that the instant citation was not validly
issued. However, these arguments are not persuasive.

First,
Respondent noted that the degree of cleanliness in the given area of a mine is
dictated by the amount of use that area receives. (Respondent�s Post-Hearing
Brief at 15 citing Beco Construction Co., 23 FMSHRC 1182, 1194-95
(Oct. 2011)(ALJ Manning)). It argued that the cited area was closed and that no
one needed to enter the silo. (Id.). Therefore, it argued that despite
the debris on the floor, the floor was sufficiently maintained. (Id.).
 Further, it argued that the area was not in as great a disarray as
Inspector Soderlind cited, as the floor was smooth, flat, and easily visible. (Id.).
In short, Respondent argued that the condition of the silo was sufficient given
its limited use.

There
was some evidence supporting Respondent�s contention that the cited silo was no
longer in use. Specifically, it was uncontested that Respondent intended to
close the cited silo. (Tr. 98, 109). Further, it was uncontested that if the
area was closed, a citation would not have been appropriate. (Tr. 49).
 However, a preponderance of the evidence showed that the silo was in use.
Specifically, it is uncontested that footprints were found inside the silo.
(Tr. 40-42, 98, 111, 117, 146-147). This indicates that while Respondent may
have intended to close the area, the silo was still in use. Respondent
presented evidence that these footprints were old, perhaps from before the bars
were placed on the silo. (Tr. 147). However, the Administrative Law Judge
credits the Inspector�s testimony that the footprints had been created
relatively recently. (Tr. 40-43). Even Respondent�s witnesses testified that
the footprints, while old, occurred after Respondent intended to close the
silo. (Tr. 145, 148-149). Finally, as discussed supra, the evidence
supports a finding that the cited area was extremely disordered. Therefore,
given the continued use of the silo and the level of debris found therein, the
cleanliness of the cited area was insufficient

Respondent
also argued that most of those footprints inside of the silo were mostly on the
floor, not the equipment or tools. (Respondent�s Post-Hearing Brief at
15). A preponderance of the evidence indicates that there were footprints on
equipment and pallets as well as on the floor. (Tr. 40-42, 98, 111, 117,
146-147). Respondent�s witness Hill testified that he could see footprints on
the belts on the floor. (Tr. 117). Even if Respondent was correct and miners
largely walked on the floor, equipment and pallets still constituted a tripping
hazard within in the silo. As a result, the location of the footprints in the
mine support the issuance of this citation.

Finally,
Respondent argued that the issue of whether the barricade was adequate is
completely irrelevant. (Respondent�s Post-Hearing Brief at 16-17). It
argued that under Section 56.20011 and the MSHA Program Policy manual, that the
barricade need only prevent unintentional access to an area. (Id.).
According to the Respondent, even if the barricade was inadequate, that does
not necessarily create a violation of the cited standard here. (Id.).

Respondent
is correct, as far as that goes. Respondent was not cited for an improper
barrier and whether the barrier was adequate does not directly bear on the
issue of Respondent�s violation of 56.20003(a). The issue in this case is
whether the silo was a storeroom and, if it was, whether the silo was
maintained. As discussed supra, a preponderance of the evidence shows
that the silo was actively used and inadequately cleaned. The state of the
barrier is only relevant in that if the barricade was more solidly constructed,
miners could not have used the silo. Having found that miners used the
storeroom, the exact state of the barrier is entirely irrelevant.

2.      Considering The Record In Toto
And Applying Applicable Case Law, The Violation Was Unlikely to Result in a
Lost Workday/Restricted Duty Injury And Was Not Significant And Substantial In
Nature

Inspector
Sichmeller marked the gravity of the cited danger in Citation No. 6564223
�Reasonably Likely� to result in �Lost Workday/Restricted Duty� injury to one
person. (GX-6). These determinations are supported by a preponderance of the
evidence.

The
event against which the instant standard, 30 C.F.R. �56.2003(a) is directed is
injury caused by poorly maintained working areas. Here the cited area was
poorly maintained. (Tr. 37, 108, 122). Even Respondent�s witnesses testified
that there were pallets, tools, and equipment strewn throughout the poorly lit
silo. (Tr. 37, 42, 108, 122, 142). However, the preponderance of the evidence
shows that exposure to the cited condition was not frequent enough to justify a
finding that the injury was �reasonably likely.� Respondent�s witnesses
credibly testified that the cited area was located on a lightly used access
road. (Tr. 108-109). Further, the evidence indicated that while some miners had
clearly crossed through the barrier into the silo, many of the miners at the
plant knew that two parallel bars indicated that the area was barred. (Tr. 49).
This further limited exposure to the cited condition. Therefore, the
Administrative Law Judge finds that there was some exposure to the cited condition,
but that an injury was unlikely to occur.

If
a miner were exposed to this danger, a preponderance of the evidence shows he
would sprain or strain a joint when falling in this area. (Tr. 47). Only one
person would be affected by the cited condition. (Tr. 47).

Having found that the exposure was limited and that an injury was unlikely, the
Administrative Law Judge finds that the cited condition was not S&S. see
Florida Rock Industries, Inc., 34 FMSHRC 745, 751-753 (Mar. 2012)(ALJ Zielinski)
(holding that if exposure is low and injury unlikely, a violation of
56.20003(a) is not S&S).

In light of the foregoing, the Administrative Law Judge finds that the cited
condition was unlikely to result in lost workday/restricted duty to one miner
and that the violation was not S&S.

3.      Respondent�s Conduct Displayed
Moderate Negligence

In
the citation at issue, Inspector Soderlind found that the operator�s conduct
was moderately negligent in character. A preponderance of the evidence shows
that Respondent knew or should have known that the cited condition existed. The
Administrative Law Judge credits the testimony of Soderlind that the condition
was open and obvious. (Tr. 48). The footprints, which showed the miners were entering
the silo, were clearly visible from outside. (Tr. 48) Therefore, Respondent
should have known that the condition existed. Further, Respondent had a history
of housekeeping violations, putting Respondent on notice that maintenance was
an area of concern. (Tr. 48, GX-1). Therefore, Respondent was negligent.

Respondent
argued that it did not know and should not have known about the cited
condition. (Respondent�s Post-Hearing Brief at 21-22). Specifically,
Respondent argued that the footprints were not visible from the roadway. (Respondent�s
Post-Hearing Brief at 22). More broadly, it argued that it had no knowledge
that people were entering the barricade. (Id.). While the administrative
Law Judge credits Respondent�s evidence that it did not have actual knowledge
of the cited condition, it should have known. The Administrative Law Judge
credited the testimony of Inspector Soderlind that the footprints were visible.
(Tr. 48). Further, Respondent should have ensured that the barricade was
honored and checked to make sure that miners were not using the area. Even a
brief glance into the silo would have revealed the footprints and alerted
Respondent to the cited condition. Respondent cannot simply overlook an area
and then use this oversight to claim that it is not negligent. See Freeport
McMoran Morenci, Inc., 2013 WL 1187700, *8 (Jan. 2013)(ALJ Miller)(holding
that a condition is not �hidden� simply because it is ignored.). While
Respondent did not have actual knowledge of the conditions at the silo, it should
have known about the instant violation.

While
Respondent was negligent, there were mitigating circumstances. Specifically,
Respondent exercised diligence in barricading the area and creating a policy against
entering barred places. (Tr. 39, 44, 49-51, 109, 123-124). In light of these
mitigating circumstances, a finding of �Moderate� negligence was appropriate.

4.     
Penalty

As
with the previous citation, the Administrative Law Judge finds that a substantial
deviation from the Secretary�s proposed assessment of $2,473.00 is warranted
herein. Once again, the factors contained in 30 U.S.C. �820(i) will be used to
explain that deviation. Those factors are as follows:

(1)
The Operator�s history of previous violations � Inspector Soderlind credibly
testified that Respondent had a history of these violations. (Tr. 48).
Respondent�s violation history supports this testimony. (GX-1).

(2) The appropriateness of the
penalty compared to the size of the Operator�s business � As discussed with
respect to the earlier citation, Respondent was a large operator with an
above-average sized plant.

(3)
Whether the Operator was negligent � As previously shown, Respondent�s
negligence is best characterized as �Moderate.�

(4)
The effect on the Operator�s ability to remain in business � The parties have
stipulated that the Orders at issue here would not affect Respondent�s ability
to remain in business. (JX-1)

(5)
The gravity of the violation � As previously shown, the gravity of the cited
danger was unlikely likely to result in lost workday and restricted duty
injuries to one miner. Further the condition was not S&S.

(6)
The demonstrated good-faith of the person charged in attempting to achieve
rapid compliance after notification of a violation � The evidence shows the
condition was abated rapidly and in good faith.

In light of the Administrative Law Judge�s decision to modify the gravity of
the cited danger from �Reasonably Likely� and �S&S� to �Unlikely� and
�Non-S&S� a reduction in the assessed penalty is appropriate. Therefore,
Respondent is hereby ORDERED to pay a civil penalty in the amount of
$1,000.00 with respect to this violation.

Citation
No. 6564235

I.                  
ISSUE

With respect to Citation No. 6564235, the issues to be determined are whether
Respondent�s alleged actions on April 11, 2011 were a violation of �56.12032
and, if so, whether that violation was significant and substantial (�S&S�),
whether it was reasonably likely to result in fatal injury to one miner,
whether it was the result of moderate negligence, and the appropriate penalty
for the violation.

II.               
SUMMARY OF
TESTIMONY

On April 11, 2011 Soderlind
issued Citation No. 6564235 (GX-9) for a violation of �56.12032 which requires
cover plates to remain securely in place on electrical junction boxes and
equipment unless under repair.[13]
(Tr. 51-54). The citation issued at the head end of the 67 conveyor outside of
the plant. (Tr. 126). Here, the cover plate for an electrical junction box was
hanging, exposing the inner-conductors and electrical terminals.[14] (Tr. 54,
56-57). These were clearly visible and the inch-and-a-half terminals were bare.
(Tr. 57, 133). Soderlind could not inspect the inner conductors, but they were
covered in dust. (Tr. 58). Aijala saw that the condition was dusty, but this
did not mean the plate had been off for a long time, without a tight seal
equipment gets dusty quickly. (Tr. 153). He believed that the wires were
protected with a rubber coating. (Tr. 133). Fewer than half of the 18 terminals
were live. (Tr. 133).

The face plate could have fallen
off from vibrations. (Tr. 62, 135). There were brackets to keep the cover plate
in place. (Tr. 61). MSHA did not require that all the screws attaching the
cover plate to the brackets be tightened, just that the plate be secure. (Tr.
62).

Soderlind testified that a cover plate
dangling would be quite apparent. (Tr. 63). The cited area was in continuous
use. (Tr. 63). In the cited area, material dropped down into trucks from
chutes. (Tr. 63). There was also a conveyor that entered from the yard. (Tr.
63). Sometimes miners would add material from the yard onto the conveyor. (Tr.
63, 126). The material was then sent to the silos and kept there until the
ships come. (Tr. 63). Soderlind conceded that the condition was behind a set of
stairs. (Tr. 94). He could not recall if he could see the condition from the
ground level, but he saw it as he was walking up the stairs to the area. (Tr.
94-95). Aijala testified that this area was very infrequently traveled. (Tr.
126). He stated no one was aware of the condition. (Tr. 135). If someone had
been aware, they would have called an electrician to put the box back on. (Tr.
135).

Miners would be in the cited area
to clean with the hose and to examine. (Tr. 55, 60). Hoses were used to clean
out two chutes that feed two belts. (Tr. 55-56, 127). When miners were hosing,
they stood near the chutes. (Tr. 155). These hoses were high pressure, powerful
enough to knock a miner down. (Tr. 61). Only one miner would be using the hose
at a time. (Tr. 61). The chutes were cleaned four times a year when a crushed
pellet product called sinter was shipped. (Tr. 127-128, 152-153, 156). Sinter
does not flow like pellets and can clog the chutes. (Tr. 128, 152). Cleaning
out the chute occurs outside in the elements, so there could be rain or snow.
(Tr. 153-154). Shipping occurred between late March and the middle of January.
(Tr. 156). However, there was still snow and ice during the shipping season.
(Tr. 156). No one would be in the area and no cleaning would occur during the
non-shipping season. (Tr. 153). At the time of the citation, no sinter boars
had been to the plant in 2011. (Tr. 152, 156).

There was also a hose lying in
the walkway near the junction box. (Tr. 59, 126). A miner could trip over the
hose if he was walking in the area and did not see it. (Tr. 59, 64). A miner
entering area to reach the electrical box and might be carrying a shovel or
tools. (Tr. 59). Soderlind testified the hose added to the hazard of the open
box, making injury more likely. (Tr. 59-60). Aijala testified that contact with
these terminals was unlikely because someone would have to fall against the
wires. (Tr. 134). A fall was unlikely because there was no tripping hazard.
(Tr. 124). Contact with these terminals was unlikely because someone would have
to fall against the wires. (Tr. 134).  He stated the hose did not present
a tripping hazard because it was coiled in a ball, the lighting was good (it
was daylight), and there was room to walk around. (Tr. 132). At nighttime this
area was well-lit with overhead sodium vapor lights. (Tr. 132). The floor in
this location was grated. (Tr. 156).

There were controls mounted on
the cover plate. (Tr. 55, 57). These controlled the ram and the limit switch.[15] (Tr. 54).
In order to use the controls a miner would put the plate back on the box. (Tr.
91). However, Soderlind believed it was possible to use the box while the face
was hanging off. (Tr. 92, 100). Soderlind did not believe they would do so, it
would make more sense to put the face back on. (Tr. 92). He conceded that
tripping over the hose was the most likely hazard. (Tr. 92).

The citation was issued out in
the yard and dock, the outside area of the mine. (Tr. 55, 58, 62). This
increased the hazard because the box was exposed to the elements. (Tr. 58).
Over time the jackets from the wires would wear out. (Tr. 58).

The box was energized. (Tr. 58).
Soderlind testified that an electrician verified that this box was 110 volts,
which is sufficient to kill a person. (Tr. 57, 60). In order to kill, 110 volts
would just need a path through the body; the miner would need to touch the box
and, with the other hand, some metal to complete the circuit. (Tr. 60). There
were metal handrails, stairs, and other structure in the area. (Tr. 60). In
Aijala�s experience, 110 volts was not enough to prove fatal. (Tr. 134-135,
151). Someone would just be shocked and then pull away. (Tr. 135). However, he
conceded he was aware that 110 volts could kill someone. (Tr. 151). That
voltage was the most common voltage and it was the most common cause of
electrical death. (Tr. 151).

Aijala testified that the cited
control box was not in use for any reason, though it had been used before. (Tr.
128-129, 150). A new control box had been built behind the stairway near the
cited location. (Tr. 129-130). As a result, there would be no reason to enter
this area because the new box was installed. (Tr. 132-133). Accessing the new
box would not require walking past the one cited. (Tr. 131). Upon coming up the
stairway in the area, the cited box was on the left, the new box was on the
right. (Tr. 131-132). Aijala conceded the old box was not being repaired and
not being tested. (Tr. 150). The cover plate was not off for maintenance. (Tr.
54, 150). Aijala further conceded that the old box was still energized. (Tr.
151). Aijala told the inspector about the new box. (Tr. 135-136). However,
while the box was no longer in use, people still entered the area to hose out
the sinter. (Tr. 151-152). People doing this task would not be focused on the
box. (Tr. 152).

The citation was marked
�reasonably likely� because there was a hose in the walkway and the junction
box was exposed to the elements and water from the hose. (Tr. 64). Water
sprayed into the terminals may have increased the corrosion or tripped
something. (Tr. 65).

The citation was marked �fatal�
because this condition could lead to fatal electrocution, burns, or shocks.
(Tr. 65). A shock of 110 volts could cause a person to lose control of his
muscles and the ability to release something from his grip. (Tr. 65-66).
Soderlind had read of these types of injuries, he has never seen one himself.
(Tr. 66). The citation was marked as affecting one person because it was likely
only one miner would be in the area. (Tr. 66).

The citation was marked S&S.
(Tr. 66). The specific hazard was the electrical risk of the open cover plate.
(Tr. 66). The hazard would be likely to occur because miners were in the area,
the area was exposed to the elements, and there was dust in the box. (Tr.
66-67). The citation was issued in April, so there could have been ice or snow.
(Tr. 67). Under continuing mining operations, an injury was reasonably likely.
(Tr. 67).

The citation was marked as �moderate�
negligence because the condition was in an open and obvious area of the mine,
the area experienced a lot of foot and vehicle traffic, and it could be seen
from outside. (Tr. 67-68). The office was nearby and all employees traveled
through the area to get to the silos, the boats, or the yard. (Tr. 68).
Further, the dust in the box and on the conductors inside indicated the
condition had existed for some time. (Tr. 68).

To terminate the condition,
Respondent screwed the four corners of the plate into the existing metal
framing. (Tr. 62, 68).

III.           
FINDINGS OF
FACT AND CONCLUSIONS OF LAW

1.      The Secretary Has Carried His
Burden Of Proof By A Preponderance Of The Evidence That �56.12032 Was Violated.

On
April 11, 2011, Inspector Soderlind issued a 104(a) Citation, Citation No.
6564235 to Respondent. Section 8 of that Order, Condition or Practice, reads as
follows:

Yards
& Docks � The cover plate for the ram and limit switch, with control
switches mounted on the face, was dangling by live 110 volt inner conductors.
This was located at the shuttle level below the head of the 67 conveyor. A 1 �
inch water hose was also in the walkway, creating an additional tripping hazard
(See Citation #6564236). This condition exposes miners to electrical hazards
resulting in serious injury.

(GX-9).

Standard
30 C.F.R. �56.12032 (�Inspection and Cover Plates�) provides the following:

Inspection
and cover plates on electrical equipment and junction boxes shall be kept in place
at all times except during testing or repairs.

30
C.F.R. �56.12032.

In the instant case, it is uncontested that there was a cover plate loose from
a junction box at the head of the 67 conveyor. (Tr. 51, 54, 56). There was no
evidence that the box was being tested or repaired. (Tr. 150).

In
its� brief, Respondent did not argue against the validity of Citation No.
6564235. The Administrative Law Judge finds that Respondent conceded that it
violated the standard. In light of this fact, and the evidence presented, the
Administrative Law Judge finds that this citation was valid.  

2.      Considering The Record In Toto
And Applying Applicable Case Law, The Violation Was Significant And Substantial
In Nature And Reasonably Likely to Result in a Fatal Injury

Inspector
Soderlind marked the gravity of the cited danger in Citation No. 6564235
�Reasonably Likely� to result in �Fatal� injury to one person. (GX-9). These
determinations are supported by a preponderance of the evidence.

The
event against which the instant standard, 30 C.F.R. �56.12032, is directed is
electrocution by contact with live electrical equipment. In the instant case,
the cited condition, the hanging cover plate, exposed miners to bare terminals
and conductors. (Tr. 55, 60). The terminals were live. (Tr. 58). Inspector
Soderlind credibly testified that, miners worked in this area and were exposed
to the electrical hazard. Further, a hose located in the area creating a
tripping hazard which increased the chances of contact with the junction box.
(Tr. 59, 64, 126). As a result, the Administrative Law Judge finds that contact
with the electrical equipment was reasonably likely. Soderlind also credibly
testified that if a miner were to contact this electrical equipment, the 110
volt charge was sufficient to cause fatal injuries to one miner. (Tr. 57, 60).

Respondent
provided several arguments asserting that an accident was unlikely and that a
110 volt shock would be unlikely. As Respondent addressed those arguments as they
related to the S&S designation, they will be discussed infra.

Citation
No. 6564235 was marked by Inspector Soderlind as S&S. (GX-9). It has
already been established that the first element of the Mathies S&S
analysis, the underlying violation of a mandatory safety standard, has been
established with respect to this citation. As discussed supra,
Respondent violated 30 C.F.R. 30 C.F.R. �56.12032.

The
second element of Mathies, a discrete safety hazard � that is a measure
of danger to safety � contributed to by the violation, is also met. The
preponderance of the evidence shows there cited condition, a hanging cover for
a junction box, contributed to the hazard of contacting live electrical
terminals. Specifically, the uncontested evidence showed that the cover of the
junction box was off and that the terminals within were live. (Tr. 54, 56-58,
151). The fact that the wires were exposed increased the likelihood that a
miner would be electrocuted.

Respondent
produced several arguments for the proposition that this condition posed no
hazards. None of these arguments are persuasive. First, Respondent argued that
there was no reasonable hazard because miners rarely entered the cited area,
limiting expsoure. (Respondent�s Post-Hearing Brief at 27-28 citing Essroc
Cement Corp., 33 FMSHRC 459, 467-68 (Feb. 2011)(ALJ Manning); Buffalo
Crushed Stone, 16 FMSHRC 2154, 2158 (Oct. 1994)(ALJ Weisberger); Danaco
Exploration International, 13 FMSHRC 1962, 1966 (Dec. 1991)(ALJ Morris);
and Higman Sand & Gravel, Inc., 27 FMSHRC 641, 643-44 (Sep.
2005)(ALJ Manning)). Respondent argued extensively that the instant citation is
similar to the condition in Higman Sand & Gravel, Inc. In that case,
the ALJ found that the cited condition was located in an area where, under
normal mining conditions, no miners would ever enter. 27 FMSHRC at 643-644.
Respondent argued that this was analogous to the instant situation wherein
miners only entered the cited area four times a year. (Id.).

While it is true that miners were not always exposed to the cited violation,
under continued normal mining conditions, exposure was certain. Unlike in Higman
Sand & Gravel, Inc., if the condition had not been abated, miners
eventually would have been ordered into this area to clean out the chutes. This
would have occurred at least four times a year. (Tr. 127-128, 152-153, 156).
Therefore, there would have been exposure. When working on the chutes, miners
would have been working in wet conditions and exposed to the elements in the
direct vicinity of the cited box. (Tr. 153-154, 156). There would also have
been tripping hazards in the area. (Tr. 54, 64). Therefore, unlike in Higman
Sand & Gravel, Inc., miners would actually be exposed to the junction
box.

Respondent
also argued that that the cited box was old and no longer in use, thereby
eliminating exposure to the cited condition. (Respondent�s Post-Hearing
Brief at 27-28). Respondent noted that Soderlind was not aware that there
was a new box when he cited the exposed junction box. (Id.). However,
the fact that there was a new junction box probably increased, rather than
decreased, the chances that a miner would contact the bare terminals. Miners working
in this area would know that there was a new junction box. Further, given the
decrepit condition of the cited box, miners would reasonably conclude that the
box was no longer in use and, as a result, no longer energized. Miners might
touch the box or simply behave less cautiously around it believing that
Respondent would not energize unnecessary electrical equipment, increasing the
chances for exposure. In effect, an �old� energized junction box might have a
greater chance of dangerous conduct than a �new� energized junction box.

Respondent also argued that miners working in this area would be using the
hose, so it would not present a tripping hazard. (Respondent�s Post-Hearing
Brief at 30). Further, the hose was sprayed away from the cited box. (Id.).
The Administrative Law Judge finds that a preponderance of the evidence
supports a finding that the cited condition poses an S&S hazard even
without a tripping hazard. There was an open junction box with live electrical
terminals in an area where miners were working. (Tr. 51, 54, 56-59, 64,126,
151). The possibility that there was a tripping hazard merely adds to that
existing danger. Further, even if miners would be using the hose and spraying
away from the junction box, under normal mining conditions there would still be
situations where the hose would be placed on the ground or when water was on
the ground, creating tripping hazards. Respondent�s argument in no way limits
the hazard.

In
light of the foregoing, the Administrative Law Judge finds that the second
prong of Mathies is met.

The
third element of the Mathies test � a reasonable likelihood that the
hazard contributed to will result in an injury � is also met. In the event that
a miner were to contact the electrical terminal, he would be electrocuted by
110 volts of electrical current. (Tr. 57, 60). There is no question that this
would cause an injury.

The
fourth element - a reasonable likelihood that the injury in question will be of
a reasonably serious nature � is also met. There is no question that
electrocution could cause serious injury or even death. (Tr. 57, 60, 151). The
voltage in the cited junction box, 110 volts, has caused more fatal
electrocutions than any other voltage. (Tr. 151). As a result, the fourth prong
of Mathies is met.

The Administrative Law Judge finds that the cited condition was reasonably
likely to result in a fatal injury to one miner. Further, the cited condition
was S&S.

3.      Respondent�s Conduct Displayed
Moderate Negligence

In
the citation at issue, Inspector Soderlind found that the operator�s conduct
was moderately negligent in character. A preponderance of the evidence supports
this determination. Respondent knew or should have known of the cited
condition. The condition was open and obvious and was located near the office,
the roadway and the truck load out area. (Tr. 63, 67-68). Further, Respondent
knew that vibrations could cause junction boxes to become uncovered. (Tr. 135).
Further, because it had ordered the junction box to be replaced, Respondent had
to be aware that it had an energized junction box that was no longer being
examined or maintained. As a result, Respondent was negligent.

Respondent
offered several argument to show that it did not know and should not have known
about the cited condition. First, Respondent argued that this was not a high
traffic area and the condition was not readily visible. (Respondent�s
Post-Hearing Brief at 31). As noted supra, while miners may not have
been at the cited junction box at all times, it was in a general area where
miners and management would be traveling and working. Further, Respondent knew
that it had an abandoned, but energized, junction box that was no longer being
maintained and examined. As a result, it should have known that the box could
pose a hazard and was negligent.

Respondent
also argued that this condition was likely caused by vibrations, meaning that
no one would notice it as it occurred. (Respondent�s Post-Hearing Brief
at 31). Respondent was clearly aware that vibrations could cause the cover
plate to fall off. (Tr. 135). Therefore, it should have been aware that the
cited condition was possible and acted affirmatively to prevent or correct it.
Therefore, Respondent was negligent.

While
Respondent was negligent, there were mitigating circumstances. Specifically,
miners were not working in this area at all times. (Tr. 127-128, 152-153, 156).
As a result, a finding of moderate negligence was appropriate.

4.     
Penalty

In
light of the fact that the Administrative Law Judge has affirmed the
Secretary�s citation as issued, it is appropriate to affirm the assessed
penalty as issued. Therefore, Respondent is hereby ORDERED to pay a
civil penalty in the amount of $11,306.00 with respect to this violation.

Citation
No. 6564248

I.                  
ISSUE

With respect to Citation No. 6564248, the issues to be determined are whether
Respondent�s alleged actions on April 18, 2011 were a violation of �56.20003(b)
and, if so, whether that violation was significant and substantial (�S&S�),
whether it was reasonably likely to result in lost workday/restricted duty
injury to one miner, whether it was the result of moderate negligence, and the
appropriate penalty for the violation.

II.               
SUMMARY OF
TESTIMONY

On April 18, 2011 Soderlind
issued Citation No. 6564248 (GX-12) for a violation of 56.20003(b) which
requires every work area and passageway be kept clean, orderly, and dry. (Tr.
68-70). Here, the area behind the tail end of the 45 conveyor was wet,
slippery, and had a buildup of taconite fines on the floor. (Tr. 70, 95, 138).
He did not measure how deep it was. (Tr. 75). There was also a pellet spill
nearby. (Tr. 70, 72). Loose pellets are like marbles. (Tr. 73). Some pellets
were in the wet fines but others were in a different area. (Tr. 95). The
condition could occurred during a shift. (Tr. 75).

Soderlind knew this area was wet,
muddy and slippery because he tested it with his foot. (Tr. 71, 75). He did not
walk through the material. (Tr. 96).  There was a lot of moisture and steam in the mine.
(Tr. 74). Water could also spill in this area. (Tr. 74-75). The cited area was
low in the mine and so water would settle there. (Tr. 75). Aijala believed that
the fines were dry and had good traction because he drug his feet across them.
(Tr. 137-138). He also did not walk through the fines. (Tr. 154).

Soderlind observed footprints in
the muddy conditions on the floor, but he could not tell if there was more than
one set. (Tr. 72, 80).
Aijala believed that
the footprints in the material showed good traction because they were
well-defined, rather than showing a slip. (Tr. 137-138). There was no evidence
anyone had slipped. (Tr. 138).

According to Soderlind, miners
accessed this area on foot often, through a set of double doors, to access the
plant. (Tr. 72-74). Miners would either go through the doors, climb the stairs,
or take the walkway around the conveyor. (Tr. 74). When traveling through this
area, miners might be carrying tools or equipment. (Tr. 76). The cited conditions were about
ten feet from the stairs. (Tr. 73). Aijala testified that the tail end of 45
conveyor was remote. (Tr. 136). He stated miners did not normally travel in
this area during the normal routine. (Tr. 136-137).

At the plant, miners act as
representatives for Respondent and identify, report, and correct hazards. (Tr.
80). Workers were to �clean through� meaning that if miners have to travel
through an area with a hazard they have to stop and clean up. (Tr. 76). This
was not a written policy. (Tr. 154). If a miner did not have time to clean, the
area was barricaded off with danger tape and the condition recorded. (Tr. 76).
The length of time between taping off and cleaning the condition would depend
on the worker�s schedule. (Tr. 154-155). In the cited area, there was no
barricade or danger tape. (Tr. 76, 154).

Soderlind testified that
Respondent did not have a cleaning crew, but other similar mines hired a
cleaning crew or a person to clean conditions constantly. (Tr. 81-82). Aijala
testified that Respondent�s day crew cleaned the floors and there were workers
on the shift who cleaned. (Tr. 138-139). He believed, under normal mining
conditions, this area would be cleaned. (Tr. 139). Soderlind testified that it
would take no more than ten minutes to clean the cited condition with a hose.
(Tr. 75, 77-78). He had seen similar areas cleaned. (Tr. 75).

The citation was marked
�reasonably likely� because there were footprints going through the condition
and this was a high traffic area. (Tr. 78). Soderlind believed that someone
would eventually slip on the fines or pellets and injure himself. (Tr. 78).

The citation was marked �lost
workday/restricted duty� because this condition could lead to sprained or
strained ankles, knees, elbows, wrists, or similar conditions. (Tr. 78). This
citation was marked as affecting one person. (Tr. 79).

The citation was marked S&S.
(Tr. 79). The specific hazard was slip and fall on the pellets or fines. (Tr.
79). Miners slipping on pellets was common. (Tr. 79). The hazard would be
likely to occur because miners traveled this area often. (Tr. 79). Under
continuing mining operations, an injury was reasonably likely. (Tr. 79-80).

The citation was marked as
�moderate� negligence because Respondent had a history of housekeeping
violations and because miners traveled through this area often. (Tr. 80).
Soderlind had cited Respondent for similar violations and also seen others.
(Tr. 81). The cited condition was not �high� negligence because he did not
believe that management knowingly told miners to walk through the cited
condition. (Tr. 81). However, it was not �low� negligence because it was open,
obvious, and should have been addressed. (Tr. 81).

This citation was terminated when
Respondent cleaned the cited condition. (Tr. 82).  The area was sprayed down,
cleared of all the slippery fine material, and the pellets were removed with a
hose. (Tr. 77).  Pellets could also have been cleaned with a shovel. (Tr.
77).

III.           
FINDINGS OF
FACT AND CONCLUSIONS OF LAW

1.      The Secretary Has Carried His
Burden Of Proof By A Preponderance Of The Evidence That �56.20003(b) Was
Violated.

On
April 18, 2011, Inspector Soderlind issued a 104(a) Citation, Citation No.
6564248 to Respondent. Section 8 of that Order, Condition or Practice, reads as
follows:

Pellet
Plant � The walkway around the tail end of the 45 conveyor was covered in wet, slippery
fines material and pellets. The affected area was approximately 20 ft. long by
6 ft. wide with foot tracks coming and going through the entire length of the
affected area. This condition exposes miners to slip/fall hazards resulting in
injury.

(GX-12).

Standard
30 C.F.R. �56.20003(b) (�Housekeeping�) provides the following:

(b)
The floor of every workplace shall be maintained in a clean and, so far as
possible, dry condition. Where wet processes are used, drainage shall be
maintained, and false floors, platforms, mats, or other dry standing places
shall be provided where practicable; and

30
C.F.R. �56.20003.

In the instant case, it is uncontested that the walkway near the tail end of
the 45 conveyor had an accumulations of fines. (Tr. 70, 72, 95, 138). The cited
condition was 20 feet long by 6 feet wide. (Tr. 71-73).

In
its� brief, Respondent did not argue against the validity of Citation No.
6564248. The Administrative Law Judge finds that Respondent conceded that it violated
the standard. In light of this fact, and the evidence presented, the
Administrative Law Judge finds that this citation was valid.  

2.      Considering The Record In Toto
And Applying Applicable Case Law, The Violation Was Significant And Substantial
In Nature And Reasonably Likely to Result in a Lost Workday/Restricted Duty
Injury

Inspector
Soderlind marked the gravity of the cited danger in Citation No. 6564248
�Reasonably Likely� to result in �Lost Workday/Restricted Duty� injury to one
person. (GX-12). These determinations are supported by a preponderance of the
evidence.

The
event against which the instant standard, 30 C.F.R. �56.20003(b), is directed
is injury caused by poorly maintained working areas. With respect to the
instant citation, the condition, an improperly maintained walkway, exposed
miners to the possibility of injury. Inspector Soderlind credibly testified
that the walkway was covered in an accumulation of mud and pellets, creating a
slip and fall hazard. (Tr. 70, 72, 95, 138). He knew the area was slippery
because he tested it with his foot. (Tr. 71, 75). He also testified that this
was a high traffic area. (Tr. 72-74, 79). In fact, he observed footprints
through the cited condition, showing that miners were exposed to the condition.
(Tr. 72, 80). Therefore, the Administrative Law Judge finds that it was
reasonably likely that a miner would suffer a lost workday/restricted duty
injury from a slip and fall.

Respondent
provided several arguments asserting that an accident was unlikely. As
Respondent addressed those arguments as they related to the S&S
designation, they will be discussed infra.

Citation
No. 6564248 was also marked as S&S. (GX-12). It has already been
established that the first element of the Mathies S&S analysis, the
underlying violation of a mandatory safety standard, has been established with
respect to this citation. As discussed supra, Respondent violated 30
C.F.R. 30 C.F.R. �56.20003(b).

With
respect to the second element of Mathies, a discrete safety hazard �
that is a measure of danger to safety � contributed to by the violation, the
preponderance of the evidence shows that the violation created a tripping
hazard.  Inspector Soderlind credibly testified that that the cited
walkway contributed to the hazard of slipping and falling. (Tr. 73, 79). The
walkway was covered in accumulations of slippery mud and taconite pellets. (Tr.
70, 72, 95, 138). Soderlind knew the condition was slippery because he tested
it with his boot. (Tr. 71, 75). These conditions support a finding that the
violation contributed to a discrete safety hazard. See e.g. Imerys Pigments,
LLC, 28 FMSHRC 180, 182-184 (Mar. 2006)(ALJ Melick).

Respondent
produced several arguments for the proposition that this condition posed no
hazards. These arguments were not persuasive. First, Respondent argued that the
cited condition was located in a remote area with little foot traffic. (Respondent�s
Post-Hearing Brief at 36). Respondent noted that where there was limited
exposure, a finding of S&S was inappropriate. (Id. at 35 citing
Placerville Industries, Inc., 27 FMSHRC 115, 119-21 (2005)(ALJ Manning)).
As noted supra, Inspector Soderlind credibly testified that miners
traveled through this area regularly. (Tr. 72-74, 79). He testified at length
about the various directions miners could travel from the walkway. (Tr. 72-74).
Further, the fact that footprints were found in the accumulations shows that
miners were accessing this area. (Tr. 72, 80). Therefore, the Administrative
Law Judge finds that there was sufficient traffic in this area to find S&S.

Respondent
also argued that the foot prints in the cited area were minimal and did not
show that there was a �regular� hazard. (Respondent�s Post-Hearing Brief
at 36 citing Patriot Mining, 31 FMSHRC at1470). While there may not, at
that time, been a large number of footprints, that does not show that this
hazard was not S&S. Under normal mining conditions, and without abatement,
more miners would have been traveling through this area. (Tr. 79, 80). The fact
that only a small number of miners, at the time of the citation, had traveled
through the area attests to Respondent�s good luck in being cited early, rather
a limited amount of exposure.

Finally,
Respondent testified that the cited condition was coarse and dry rather than
slippery. (Respondent�s Post-Hearing Brief at 36-37). Aijala testified
that he tested the material with his feet and found that it was dry and had
good traction. (Id.). Further, the �firm� footprints showed that the
material was not slick. (Id.). The Administrative Law Judge credits the
testimony of Inspector Soderlind that the material was wet and slippery. (Tr.
71, 73, 75, 79). The photograph evidence supports a finding that the walkway
was slick. (GX-14, p. 1). Further, even if the material was largely dry, it
would still make the walkway slippery and increases the likelihood of an
injury. As a result, the Administrative Law Judge finds that the sector prong
of Mathies is met.

The
third element of the Mathies test � a reasonable likelihood that the
hazard contributed to will result in an injury � is also met. In the event that
a miner were to slip and fall on the walkway, injuries including sprains,
strains, and broken bones would be expected. (Tr. 78). 

Respondent
argued that there was no evidence that an injury could result beyond the
Inspector�s experience. While it is possible that no slip and falls had ever
caused injury at Respondent�s plant, the Administrative Law Judge credits the
inspector�s testimony that such a fall could result in sprains, strains, and
broken bones. (Tr. 78).The inspector�s testimony regarding his experience
constitutes evidence regarding the likelihood of an injury. Buck Creek Coal,
Inc. v. Federal Mine Safety and Health Admin., 52 F.3d 133, 135-136 (7th
Cir. 1995)(holding that �no further evidence� beyond the Inspector�s testimony
is necessary to find that a violation was reasonably likely to result in injury
and was S&S); see also Harlan Cumberland Coal Co., 20 FMSHRC 1275,
1278-1279 (Dec. 1998). There is no requirement that the Inspector prove that an
injury occurred in this particular case or testify directly regarding an
identical situation. As a result, the Administrative Law Judge finds that the
third element of Mathies is met.

The
fourth element - a reasonable likelihood that the injury in question will be of
a reasonably serious nature � As noted supra, an injury caused by slip
and fall would be of a reasonably serious nature.

Respondent
argued that a slip and fall type injury would not constitute an injury of a
reasonably serious nature. (Respondent�s Post-Hearing Brief at 37).
Respondent cites Placerville Industries, Inc., for the proposition that
a slip and fall would not result in a reasonably serious injury. 27 FMSHRC at

121. However, slip and fall injuries are not, as a matter of law, always minor.
     There are several ALJ cases that find hazards that pose slip-and-fall risks to
     be S&S. See e.g. Oak Grove Resources, LLC, 35 FMSHRC 3039, 3052
     (Sept. 2013) (ALJ Zielinski); Oil-Dri Production Company, 32 FMSHRC 1761
     (Nov. 2010) (ALJ Manning); and Mach Mining, LLC, 32 FMSHRC 213 (Feb.
     2010) (ALJ Weisberger). The determination of whether a violation is S&S,
     including whether it would result in a reasonably serious injury is based on
     the particular circumstances of that violation. Texasgulf Inc., 10
     FMSHRC at 501. Therefore, whether the slip and fall injuries expected here
     would result in a reasonably serious injury must be determined based on the
     specific circumstances surrounding this violation. The Administrative Law Judge
     finds the cited condition was extremely wet and slippery and also located in an
     area where there were staircases and a large amount of equipment. (Tr. 71-75,
     79). As a result, a reasonably serious injury was reasonably likely.

The
Administrative Law Judge finds that the cited condition was reasonably likely
to result in a lost workday/restricted duty injury to one miner. Further, the
cited condition was S&S.

3.      Respondent�s Conduct Displayed
Moderate Negligence

In
the citation at issue, Inspector Soderlind found that the operator�s conduct
was moderately negligent in character. A preponderance of the evidence supports
this designation. Inspector Soderlind credibly testified that the cited
condition was open and obvious. (Tr. 80). Further, Respondent had a history of
housekeeping violations, placing them on notice that this type of issue would
arise. (Tr. 80, GX-1). While it is likely that Respondent did not have actual
knowledge of the cited condition, it should have known. Therefore, it was
negligent.

Respondent
argued that consideration of the history of housekeeping violations was
inappropriate. (Respondent�s Post-Hearing Brief at 39). Specifically, it
noted that the only issue with respect to negligence is whether Respondent knew
or should have known of the cited condition and that prior actions do not
matter for this inquiry. (Id.). Respondent misunderstands the way in
which past violations are used in determining negligence. Respondent is not
being punished again for past violations, instead past violations are used to
show Respondent had notice. Black Beauty Coal Co. v. Federal Mine Safety and
Health Review Com'n, 703 F.3d 553, 561-562 (D.C.Cir. 2012)(holding that
past violations provide awareness to a mine operator and are relevant for both
unwarrantable failure and negligence determinations). Showing that Respondent
had been cited for housekeeping issues in the past shows that Respondent knew
these conditions could and would arise but failed to take proper precautions.
As a result, the Administrative Law Judge considers the credible evidence
submitted on that point to be relevant to determining Respondent�s negligence

Respondent
also argued that it should not have known about the condition because the cited
area was remote and rarely traveled. (Respondent�s Post-Hearing Brief at
38). As discussed with respect to gravity supra, the Administrative Law
Judge credits the testimony of the inspector that miners traveled with some
regularity in this area. (Tr. 72-74, 79). Further, the footprints in the
material attested to the fact that miners were required to walk in this area.
(Tr. 72, 80). A preponderance of the evidence shows that miners worked in this
area. As a result, the failure to maintain it constituted negligence.

While
Respondent was negligent, there were mitigating circumstances. Specifically,
Inspector Soderlind noted that the mine used a �clean through� program that
allowed miners to inspect the mine. (Tr. 81-82). Therefore, management may not
have been aware of the cited condition. Further, as Respondent argued, a
cleaning crew at the mine was tasked with cleaning these areas. (Respondent�s
Post-Hearing Brief at 38). Eventually, this crew may have cleaned the cited
condition even if Respondent had not been cited. As a result, a finding of
moderate negligence was appropriate.

4.     
Penalty

In
light of the fact that the Administrative Law Judge has affirmed the Secretary�s
citation as issued, it is appropriate to affirm the assessed penalty as issued.
Therefore, Respondent is hereby ORDERED to pay a civil penalty in the
amount of $3,405.00 with respect to this violation.

ORDER

It
is hereby ORDERED that Citation Nos. 6564267, 6564223, 6564235, and
6564248 are AFFIRMED as modified herein.

Respondent
is ORDERED to pay civil penalties in the total amount of $17,711.00
within 30 days of the date of this decision.[16]

/s/ John Kent
Lewis  

John Kent Lewis

Administrative Law Judge

Distribution:

Timothy
Turner, Esq., U.S Department of Labor, Office of the Solicitor, 1999 Broadway,
Suite 800, Denver, CO 80202-5708

Arthur
Wolfson, Esq., Jackson Kelly, PLLC, 401 Liberty Avenue, Suite 1500, Pittsburgh,
PA 15222

[1] Hereinafter the
Joint Exhibits will be referred to as �JX� followed by the number. Similarly,
the Secretary�s Exhibits will be referred as �GX� and Respondent�s Exhibits
will be referred to as �RX.�

[2] Hereinafter the
transcript will be cited as �Tr.� Followed by the page number.

[3]
At hearing, Soderlind was present and testified for the Secretary. (Tr. 13). At
the time of the hearing, he had worked for MSHA�s Duluth, Minnesota office as a
metal/nonmetal mine safety and health inspector for four years. (Tr. 13). In
that capacity he inspected 50-80 mines a year to ensure safety. (Tr. 13).
Soderlind had been trained to become an inspector at the Mine Safety and Health
Academy in West Virginia. (Tr. 14). He also received journeyman refresher
training every two years. (Tr. 14, 82). Before working for MSHA, Soderlind
worked construction for seven years. (Tr. 14-15, 83). Before that he was in the
Marine Corps for over six years. (Tr. 15). His Marine Corps experience included
work as crash, fire, and rescue personnel. (Tr. 15, 83). He also attended a
structural firefighting academy in Orange County, California. (Tr. 15).
Soderlind was certified as an EMT and a firefighter. (Tr. 15). Soderlind also
had an English degree. (Tr. 15). He had never worked in a taconite plant. (Tr.
83).

[4]
Respondent was owned by Cleveland Cliffs and the plant was located in Silver
Bay, Minnesota. (Tr. 16). Respondent engaged in iron ore mining and creation of
taconite pellets. (Tr. 16). There are roughly 400 miners at Respondent�s plant.
(Tr. 114). At the time of the hearing, Soderlind had inspected the plant a
total of four times. (Tr. 15-16). His most recent inspection lasted 9-weeks and
occurred two weeks before the hearing. (Tr. 16). The plant was inspected twice
a year for between 9 and 14 weeks each time. (Tr. 16).

[5]
At hearing, Brian Hill was present and testified for Respondent. (Tr. 102).
Both at the time of the hearing and May of 2011, Hill was on the day crew for
pelletizer operations. (Tr. 102). At the time of the hearing he took care of
precips, dust collectors, and other environmental pollution controls. (Tr.
102). When the instant citations were issued he was training and taking care of
equipment (the furnace, the ball and drums, etc.). (Tr. 102). He had worked for
Respondent for five and a half years and started in the mining industry in
1995. (Tr. 102-103). He spent 13 years as a belt contractor, but worked at the
Plant as he did so. (Tr. 103).

[6]
The tail pulley was about two feet in diameter and three feet wide. (Tr. 23).
There was a shaft through the pulley to the pillow block (which had a grease
coming out of it). (Tr. 23).

[7] �Places� and
�Areas� are terms that are apparently used interchangeably.

[8] Hill
accompanied Soderlind on this inspection. (Tr. 108).

[9] At hearing, Tim
Aijala was present and testified for Respondent. (Tr. 119). He had worked for
Respondent for 15 and a half years. (Tr. 120). He worked for a year as safety
inspector and spent 13 years loading boats and running heavy equipment. (Tr.
120). At the time of the hearing he was employed by Respondent to operate the
railroad. (Tr. 119). At the time of the instant citations he was the safety
inspector. (Tr. 120). As a safety inspector, he inspected the plant every day
looking for safety hazards and writing work orders. (Tr. 120). He also
accompanied MSHA inspectors. (Tr. 120). Before working for Respondent, Aijala
spent eight years working at an underground copper mine in Michigan. (Tr. 120).
Aijala did not accompany the inspector here, but went afterwards and looked at
it before the abatement. (Tr. 121-122, 139-140).

[10]
Soderlind did not go inside the silo. (Tr. 88).

[11] Soderlind
believed he ask someone why miners would enter the silo. (Tr. 88). Such a
conversation would be in his field notes. (Tr. 88). However, Soderlind was
unable to find a record of such a conversation in either his field notes (RX-7)
or citation notes (GX-7). (Tr. 89).

[12] Aijala took inspection
notes that day. (Tr. 121, 140-141). He would take a notepad every day and
compiles notes and then collect them in a bigger notebook. (Tr. 121-122). The
next day, when the citations are issued with numbers, he transfers his notes
from his notebook to a new set of notes. (Tr. 141-142). If a citation was
issued when he is not present, he will talk with the person who was with the
inspector and, if possible, look at the condition himself. (Tr. 141).

[13] Aiajala
accompanied Soderlind. (Tr. 126).

[14] The junction
box was about four and a half to five feet off the ground. (Tr. 57). There was
a handrail under the box, 44-inches off the ground. (Tr. 57). The box was
between a foot-and-a-half and two feet above the handrail. (Tr. 57).

[15] Soderlind was
not sure was the ram and limit switch were. (Tr. 55). The cited area was a
truck dump area and he believed the switch was related to clearing the chute,
but was not sure. (Tr. 55). Aijala testified that the controls were used to
move the cylinder back and forth between the belts. (Tr. 128-129). If
maintenance was working on one of the belts it would use the control box to
direct the reclaimed pellets onto the other belt so one belt would continue to
run while they worked. (Tr. 129).

[16] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390