FMSHRC ALJ decision Docket LAKE 2013-458-M, LAKE 2013-596-M, LAKE 2013-674-M Decided February 26, 2015 Mixed result Judge David F. Barbour

Secretary of Labor v. Northshore Mining Company

Secretary of Labor v. Northshore Mining Company (FMSHRC LAKE 2013-458-M): Mixed ruling and settlements produce $47,135 penalty

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This order from 2015 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.

Final ALJ decision under the Mine Act's 40-day rule

This administrative law judge decision became a final decision of the Commission because no Commissioner directed review within 40 days, under 30 U.S.C. § 823(d)(1). It is binding on the parties but is not Commission precedent. The full text below is from the official FMSHRC release.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the Commission's own document.

Read the official release (fmshrc.gov)

Plain-English summary

Northshore Mining processed taconite ore at a surface facility in Minnesota, where MSHA cited housekeeping, access, electrical, and guarding conditions. Judge David F. Barbour affirmed eight of the nine contested violations, including three S&S housekeeping violations involving slippery floors, pellets, standing water, and submerged debris. He removed the S&S designations from citations involving icicles and an icy pump-house walkway, but affirmed two serious electrical junction-box violations and a separate passageway housekeeping violation. He vacated a guarding citation because MSHA's prior enforcement and an inspector's recent assurance did not give Northshore fair notice that more guarding was required. The judge assessed $19,509 for the contested violations and approved settlements totaling $27,626, for a combined penalty of $47,135.

Decision snapshot

Cited standards: 30 C.F.R. §§ 56.11001, 56.11016, 56.12032, 56.14107(a), 56.18002, 56.20003(a), and 56.20003(b)
Outcome: Eight contested violations were affirmed or modified, one guarding citation was vacated, 25 settlements were approved, and total penalties of $47,135 were assessed.
Key point: Inconsistent enforcement and a recent inspector assurance defeated fair notice for the guarding citation, while longstanding visible conditions supported the remaining violations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Petitioner

NORTHSHORE
MINING COMPANY,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. LAKE 2013-458-M

A.C.
No. 21-00831-319425

Docket
No. LAKE 2013-596-M

A.C.
No. 21-00831-327651

Docket
No. LAKE 2013-674-M

A.C.
No. 21-00831-330143

Mine:
Northshore Mining Company

DECISION AND
ORDER

Appearances: Carol
Liang, Esq., Ryan L. Pardue, Esq., U.S. Department of Labor, Office of the
Solicitor, Denver, CO for Petitioner

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

Before: Judge
Barbour

This consolidated
case is before me on petitions for assessment of civil penalty filed by the
Secretary of Labor on behalf of the Mine Safety and Health Administration
(MSHA) against Northshore Mining Company (“Northshore”), pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977. 30 U.S.C. § 815(d). The Secretary alleges that Northshore
is liable for 34 violations of various mandatory safety standards for the
nation’s metal and nonmetal mines.[1]
The Secretary proposed a total assessment of $79,023.00 for the alleged violations.
The parties presented testimony and documentary evidence at a hearing in Duluth,
Minnesota. They also filed post-hearing briefs.[2]

Twenty-five violations were settled before
the conclusion of the hearing. Details of the settlement are discussed at the
end of this decision. The Secretary asserts that a total penalty of $35,983.00
is appropriate for the nine remaining violations, which are alleged in Citation
Nos. 8672113,
8672114, 8672460,
8672461,
8672520, 8672522, 8672527, 8672530, and 8672537. These citations were issued
pursuant to section 104(a) of the Mine Act. 30 U.S.C. § 814(a). The Secretary further asserts that five
of the violations were significant and substantial contributions to mine safety
hazards (“S&S”),[3]
that each of the violations affected one person, and that all of the violations
were a result of negligence by the operator ranging from “low” to “high.”

STIPULATIONS

At all times relevant to this matter,
Northshore was the operator of Northshore Mining Co. [4]
(“Mine” or “Northshore Mine”).
Northshore’s operation at the Mine
involved products which entered commerce or products which affected commerce.
Between January 9, 2013 and April 8,
2013; and between June 10, 2013 and August 21, 2013; the Mine Safety and Health
Administration (“MSHA”) inspected the Mine.
The individuals whose signatures
appear in Block 22 of the citations at issue were acting in their official
capacities and as authorized representatives of the Secretary of Labor when the
citations were issued.
True copies of the citations at issue
were served on Northshore as required by the Mine Act.
The certified copy of the MSHA
Assessed Violations History reflects the history of the citation issuances at
the Mine for the 15 months preceding the citations at issue, and may be
admitted into evidence without objection by Northshore.
The parties stipulate to the
authenticity of their exhibits but not the relevance or truth of the matters
asserted therein.
Northshore demonstrated good faith in
the abatement of the citations.
The proposed penalties will not
affect Northshore's ability to continue in business.

Sec’y
Prehearing Report 1-2; Resp. Prehearing Statement 1-2, 23; Tr. 14-15.[5]

BACKGROUND

Northshore Mine, which is located in Silver
Bay, Minnesota, is a surface processing and shipping facility for taconite ore,
a form of iron. Tr. 21-22, 46, 48. The raw material is originally mined in
Babbitt, Minnesota, and delivered by rail to the Northshore Mine, where it is
crushed, separated, concentrated, and “pelletized” before being shipped to
steel mills. Tr. 21, 48-50.[6]
Northshore contracts out a portion of its maintenance work at the Mine to
various independent contractors, including Northern Belt & Conveyor, Inc.
(“NBC”) and C.R. Meyer & Sons, Co. (“CR Meyer”). See Tr. 98, 258-59.

Annually, during what Northshore refers
to as “the summer outage,” the Mine is “offline completely” and “not producing
any pellets” in order to allow for maintenance. Tr. 269, 304. Northshore
employees and the employees of independent contractors both perform cleaning
and maintenance work during this period. See Tr. 269-70. Several of the contested
citations in this case were issued during the summer outage.

Between January 9, 2013, and April 8,
2013, and June 10, 2013, and August 21, 2013, MSHA Inspectors, including
William Soderlind, primarily, and Richard Allen King, secondarily, conducted
regular inspections at the Northshore Mine. Tr. 23-24.[7]
Northshore’s plant safety inspector, Jared Conboy, and its safety
representative, Scott Alan Blood, accompanied Soderlind and King respectively
during the Mine inspections that give rise to this dispute. Tr. 48, 153.

HOUSEKEEPING
VIOLATIONS

Citation
No. 8672460

Inspector Soderlind testified that he
issued the citation after observing a “loose mud-like” mixture of “fines
material” and “standing water” on the floor of the concentrator basement
alongside a conveyor belt. Tr 28-30. Soderlind tested the material with one
foot and found that his foot “would slide.” Tr. 31. Conboy, on the other hand,
walked through the material while abating the condition and found the mixture
“thick, cake-like, dense, and walkable” rather than slippery. Tr. 52-54.
However, he agreed that the area of the material that Soderlind tested would
have had more of a mixture of fines and water than the area he walked through.
Tr 78.[8]

Soderlind found the condition to be
S&S. GX-2 at 1. He testified that the material was located along “the side
of the conveyer [one] would typically walk on to travel through,” that the area
was traveled “daily” by “people that work in the concentrator,” and that he
observed footprints traveling through the walkway. Tr. 29-30. A photograph
taken by Soderlind confirms the presence of footprints. See GX-2 at 3. Soderlind
also testified that the area was dark. Tr. 28. Conboy disagreed, but admitted
that “a low-hanging pipe . . . does block a little bit of the light out in [the]
area.” Tr. 60. Soderlind found it reasonably likely that a miner would walk
through the area, slip, and suffer an injury, resulting in lost work days or
restricted duty. GX-2 at 1; Tr. 30-32.

Soderlind believed that “somebody” at
Northshore “had reason to know that…there was

a
. . . condition that needed attending.” Tr. 33. He testified that he was told
that “miners that work in the area conduct their own work area inspections and
then report that back to management.” Id. The issue was “obvious” and
did not look as though it had “just happen[ed].” Tr. 33-34. As a result,
Soderlind found Northshore to be moderately negligent. Id. During cross
examination, Soderlind admitted that he did not see anyone working “in the
immediate area” at the time of the inspection, and that contractors were
working in the concentrator that day. Tr. 40-41, 44. The company contends that
the Secretary did not provide any evidence that the area had been visited
during the timeframe of the violation by anyone other than a contractor or a rank-and-file
miner, neither of whose negligence can be imputed onto the operator. Resp. Br.
9-10. Further, the company argues that if no Northshore employee was working in
the area, it would not have been required, under 30 C.F.R. § 56.18002, to conduct workplace
inspections there. Id.; Tr. 38-39.

Citation
No. 8672461

Soderlind issued this S&S citation
after observing a slick oil, water, and grease spill “up to half an inch deep”
across the walkway of the concentrator sub-basement area. Tr. 83; GX-3 at 1. He
felt that the spill posed a slip and fall hazard, particularly if a miner were
to “step on a slippery spot in the oil.” Tr. 86. He observed “several
footprints” and “cart” tracks running through the spill, and “more than two or
three” miners working in the area. Tr. 84-85. According to Soderlind, in order
to bypass the hazard, a miner would need to go up a level and come back down
around from the other side of the walkway. Tr. 86. As with the previous
citation, Soderlind believed that it was reasonably likely that a miner would suffer
an injury in a fall, resulting in lost workdays or restricted duty. Id.

Conboy testified that he was able to
step over the spill without difficulty to avoid walking through it (Tr. 101),
and that even were a miner to walk through the spill, the solid concrete floor
and “ANSI certified boot[s]” that miners wear would provide traction on the
floor. Tr. 101-102.[9]
Further, Conboy believed that the spill was “more water” than oil (Tr. 104),
which the company argues is supported by photographs depicting all of the oil being
swept up and cleared through the use of a limited number of thin absorbent
pads. See Resp. Br. 16; RX-14(b).

Soderlind found Northshore to be
moderately negligent because in his opinion the spill was obvious and “people
[were] working” in the area. Tr. 88-89. He concluded that the extent of the
spill and the absence of any ongoing leak indicated that the spill had been
present for “a good amount of time.” Tr. 89. Soderlind reiterated that Northshore
miners are expected to conduct their own workplace examinations and report
safety violations to management, and that this practice applies in this area as
well. Tr. 88. His understanding, based on discussions with Northshore, was that
management would also try to inspect an area such as this once a week. Id.

Conboy testified that electrical
contractors and CR Meyer’s employees worked in the area from which the oil
spill originated and that the footprints observed in the spill were “more
likely” from one of them. Tr. 98, 109. The company disputes that any Northshore
employees were working in the area and, once again, argues that there is no
clear evidence that any Northshore employee encountered the spill or had reason
to know about it. See Resp. Br. 18-19. Rather, there is more reason to
think that contractors were primarily negligent in this situation. Id.

Citation
No. 8672522

Soderlind observed a mix of pellets and
standing water on the ground of the pellet plant, near the tail pulley. Tr. 250,
252-53. According to Soderlind, the pellets—which were approximately 1/4 to 3/8
of an inch in diameter—were scattered across inclined walkways on either side
of the No. 46 conveyer belt. Tr. 250, 252-53. Additionally, guards, planks, and
a hose were submerged under two feet of water in the area. Id.

Soderlind saw a miner slipping on the
pellets on the floor, although Conboy clarified that this did not result in a
fall. Tr. 255, 276-77. Soderlind also observed other miners working in the area,
and he testified that the area provided passage between different parts of the
pellet plant. Tr. 257. When asked directly, Soderlind answered that the miners
in the area were “Northshore employees[].” Tr. 266. Conboy testified that,
because it was summer, the individuals in the area would have been a contractor’s
employees, as he was not aware of any “Northshore employees [being] given any
tasks with respect to the [No.] 46 conveyor,” during the summer outage. Tr.
269-70. The nearest Northshore workers Conboy recalled seeing “were working on
[a separate] conveyor . . . on the opposite side of the wall from the [No.] 46
conveyer, . . . somewhere around 100 feet from the tail pulley.” Tr. 270.

According to Conboy, independent
contractor NBC had contracted with Northshore to replace a conveyor. Tr. 269. NBC’s
employees had been on the job “for quite some time.” Tr. 286. NBC had a foreman
and safety representative on site during the timeframe in which the violation
occurred. Tr. 259, 263. Additionally, NBC’s Master Service Agreement with
Northshore specified that NBC would “remove all debris and trash daily.” RX-73 at
2, 15. However, the Agreement also allowed Northshore to implement corrective
measures at its contractor’s expense for housekeeping violations if the contractor
neglected to correct those problems immediately upon request. RX-73 at 15.

The Secretary argues that Northshore should
be held responsible for its contractors’ conduct because the company failed to
implement additional training for contractors on housekeeping and orderliness,
outside of the single paragraph instructions in the 18-page “Master Services
Agreement” that all of Northshore’s contractors must sign. See Sec’y Br.
16; RX-73 at 2, 15.[10]
Conboy did however testify that Northshore requires its contractors to “receive
the same training” that it requires of its own employees through MSHA and that
contractors are “not allowed on the property without their 5000-23 [inspection
certificates].” Tr. 287-88[11]
Further, contractors have to “watch [a] site-specific safety video in which
[Northshore] cover[s] [b]riefly” housekeeping protocol. Id.

THE
VIOLATIONS, THEIR S&S NATURE, THEIR GRAVITY, AND THE COMPANY’S NEGLIGENCE

The
Violations

Section 56.20003(b) requires that, “The
floor of every workplace shall be maintained in a clean and, so far as
possible, dry condition . . . .” The floors of the three cited areas were not
maintained in such a condition. Both Soderlind’s and Conboy’s photos indicate extensive
spills in violation of the mandatory standard. See GX-2 at 3-4, GX-3 at 3-6,
GX-10 at 6-16; RX-3, RX-14, RX-72. The court finds that the conditions of the
cited areas were as depicted in these photographs and in Soderlind’s testimony (see
Tr. 30-32, 86, 252-53) and that the housekeeping violations existed as charged.

The Gravity and S&S Nature of the
Violations

Soderlind found that all three
violations were S&S and reasonably likely to result in lost workdays or
restricted duty. GX-2 at 1, GX-3 at 1, GX-10 at 1. The court agrees. The
discrete safety hazard contributed to by each of the violations was a slip and
fall accident, and the conditions in each area made it reasonably likely that
an injury would result from this hazard. Tr. 30-32, 86, 252-53. Citation No.
8672522 presented an additional hazard of tripping over submerged items, with
the same likelihood of resulting injury. Tr. 252-53.

For Citation No. 8672460, the court
credits Soderlind’s testimony on the slipperiness of the material and the diminished
visibility in the area. Tr. 28, 31. Conboy’s testimony does not refute these
assessments. While he did not find the area slippery, he admittedly walked
through a different portion of the material with a different consistency than Soderlind.
Tr. 52-54, 78. Regarding the lighting, he agreed that a low hanging pipe in the
area blocked some of the light, and his own photographs appear to confirm the
inadequacy of the area lighting. Tr. 60; see also RX-3(d). Furthermore,
a miner attempting to avoid a low hanging pipe in a dimly lit area would be at
an increased risk of slipping and falling after failing to observe the hazard.

Regarding Citation No. 8672461, the
court finds that the extent of oil and grease in the mixture was sufficient to
create a discrete slip and fall safety hazard. Neither work boots nor solid
concrete can sufficiently counteract this risk. This hazard would be reasonably
likely to lead to injury as well. There was extensive evidence of work being
conducted in the area, including right through the spill itself, increasing the
chances of a miner contacting the spill and losing his or her footing. See
Tr. 84-85.

Citation No. 8672522 presents an even
clearer case of reasonably likely injury, given that an individual actually
slipped on the pellets in the middle of the inspection. Tr. 255. The submerged
debris in the area presented miners with additional slip and fall hazards as
well. Tr. 252-53. With miners working in the area at that time and others
potentially accessing the area to perform maintenance on the belts or pumps or
to travel to other parts of the pellet plant, continued normal mining
operations would make further slips, and consequent injuries, reasonably
likely. Tr. 257.

The court is convinced that the
resulting injury from each violation would likely be reasonably serious. While the S&S nature of a violation and the gravity of a violation are not synonymous, (see
Consolidation Coal Co., 18 FMSHRC 1541, 1550) (explaining the “focus
of the seriousness of the violation is not necessarily on the reasonable
likelihood of serious injury, which is the focus of the S&S inquiry, but
rather on the effect of the hazard if it occurs”), the facts in these citations justify
findings of both S&S and serious gravity. Soderlind
detailed various injuries that could occur from a slip and fall accident in
either area, including joint or muscle strains or sprains, all of which strike the
court as entirely plausible and likely to result in lost workdays or restricted
duties. Tr. 30-32, 86, 255-56.

The Company’s Negligence

Soderlind found
Northshore moderately negligent for Citation Nos. 8672460, 8672461, and 8672522.
GX-2 at 1, GX-3 at 1, GX-10 at 1. Moderate negligence reflects the Secretary’s
determination that “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” 30 C.F.R. §100.3(d).
Northshore contends that the court should reduce the negligence finding for
Citation No. 8672460 and find no negligence for Citations Nos. 8672461 and
8672522. See Resp. Br. 9, 19, 45. “Low negligence” is appropriate when
“[t]he operator knew or should have known of the violative condition or
practice, but there are considerable mitigating circumstances.” 30 C.F.R. § 100.3(d).
A finding of “no negligence” indicates that “[t]he operator exercised diligence
and could not have known of the violative condition of practice.” Id.

Northshore cites
the holding in Fort Scott Fertilizer-Cullor, 17 FMSHRC 1112, 1115-16 (citing
Southern Ohio Coal, 4 FMSHRC at 1464), that “conduct of a rank-and-file miner
is not imputable to the operator in determining negligence for penalty purposes”
and argues that the Secretary has not proven by a preponderance of the evidence
that anyone other than a contractor or a rank-and-file miner knew or should have
known about the violations. Resp. Br. 9, 18, 45. However, the Commission has
also stated that “[t]he fact that a violation was committed by a
non-supervisory employee does not necessarily shield an operator from being
deemed negligent.” A.H. Smith Stone, Co. 5 FMSHRC 13 at 15. In assessing
an operator’s negligence in such cases, the Commission takes into account “such
considerations as the foreseeability of the miner's conduct, the risks
involved, and the operator's supervising, training, and disciplining of its
employees to prevent violations of the standard in issue.” Id. Finally,
the Commission has explained that “a history of similar violations at a mine
may put an operator on notice that it has a recurring safety problem in need of
correction and thus, this history may be relevant in determining the degree of
the operator's negligence.” Peabody Coal Co., 14 FMSHRC 1258, 1264.

The court finds
that Northshore was minimally negligent in all three citations. The company had
a significant history of housekeeping violations over the prior 15 month period,
as well as a history of slip and fall injuries. See GX-1 at 5-6; Tr. 87.
This history put the company on notice that it had a recurring safety problem
in need of correction and gave rise to a heightened duty to carefully inspect
for housekeeping violations. The court credits Soderlind’s testimony that the spills
were obvious and likely occurred over an extended period of time, as these
conclusions are supported by both parties’ photographic evidence. See Tr.
33-34, 89, 257; see also GX-2 at 3-4, GX-3 at 3-6, GX-10 at 6-16; RX-3,
RX-14, RX-72. Given these conditions, Northshore should have discovered all
three of these violations before the citations were issued.

There is however
insufficient evidence to support Soderlind’s finding of moderate negligence for
any of the three citations. The court finds that there was no work being
conducted in the cited area in Citation No. 8672460 at the time of the
violation, consistent with Soderlind’s own testimony (see Tr. 44), and
that only contractors were working in the cited areas in Citation Nos. 8672461
and 8672522. The Secretary failed to present testimony that any Northshore
employees had worked in the cited area in Citation No. 8672461, while Conboy
testified that contractors worked in the vicinity. See Tr. 110. There is
conflicting testimony from Soderlind and Conboy regarding whether Northshore
employees were working in the area in Citation No. 8672522 (see Tr. 266,
269-70), however the court credits Conboy’s testimony that they were not. He
provided greater detail on the specific location of the closest Northshore
employees -- around 100 feet from the tail pulley -- and adequately explained
why no Northshore employee would have been near the cited area. See Tr.
269-70. As the mandatory safety standards for surface metal and nonmetal mines
only require an operator to conduct shift examinations of working places,
Northshore would not have discovered the violations through such means. 30
C.F.R. §
56.18002

Finally, the court does not find that
Northshore’s selection, training, or supervision of its contractors elevated
its level of negligence. Its contractors assumed some responsibility over the
areas in which they worked through their Master Service Agreement with the
company and took considerable steps to assure Northshore that they could meet
this responsibility, including appointing experienced foremen and safety
representatives and completing safety training. Tr. 259, 263. The Secretary’s
argument that Northshore should have provided further training or instruction
to its contractors is unpersuasive given the absence of any evidence that MSHA
cited Northshore for inadequate training of its contractors. See Sec’y
Br. 16. Accordingly, the court finds low negligence on Northshore’s part for
Citation Nos. 8672460, 8672461, and 8672522.

Citation
No. 8672530

Soderlind issued this citation for a violation of 30 C.F.R. § 56.20003(a) after
observing pellets on the “dark,” “inclined” walkways on each side of conveyer
belt H, at a landing at the top of a set of stairs. Tr. 293-94, 296, 298. He
designated the violation non-S&S because the conveyer belt in the area was
not running, and “there [were] not a lot of people working in the area at the
time.” Tr. 297. The injury reasonably expected was a “sprain and strain” from a
slip and fall, leading to “lost work days or restricted duty.” Tr. 298.
Soderlind found low negligence because Northshore employees were not working in
the area at the time. Tr. 299. Conboy clarified that this was during the two
weeks summer outage (Tr. 304-05), that the closest miners in the area were “250
to 300 feet” away (Tr. 309), and that during the summer outage he could not
conceive of any reason why miners would have to go the H belt area. Tr. 310.
Moreover, the pellets were cited on a “U-shaped walkway” that only provides
“roundabout” access around the H conveyer belt. Tr. 306. An individual who
traveled on the walkway would end up “back to where [he] started” and nowhere
else. Tr. 310.

THE
VIOLATION, ITS GRAVITY, AND THE COMPANY’S NEGLIGENCE

Section 56.20003(a) states that, “Workplaces, passageways, storerooms, and
service rooms shall be kept clean and orderly.” The cited walkway was clearly
not kept clean or orderly due to the extensive presence of pellets scattered
about the floor. See Tr. 293-94; see also GX-12 at 3-4. Neither
party contends that the walkway was a workplace, and due to the absence of any
work being performed in the area during the summer outage, the court agrees
that the cited area was not a workplace. The key area of dispute between the
parties is whether the cited area was a “passageway” under the terms of the
standard. See Sec’y. Br. 23; Resp. Br. 52. The Mine Act and mandatory
safety standards do not define the term, and the Commission has not addressed
the issue. The company relies on Spencer Quarries, Inc., 32 FMSHRC 644 (June
2010) (ALJ) to argue in its brief, “Whether an area is considered to be [a]
passageway that requires cleaning is determined, in part, by whether it is an
active area at the time at issue.” Resp. Br. 51. In Spencer Quarries, Commission
Administrative Law Judge Richard Manning vacated a citation alleging a
violation of Section 56.11016 due to inactivity on the cited walkway. But
Section 56.11016, unlike Section 56.20003(a), makes no mention of the term
“passageway” and therefore the court finds that Spencer Quarries fails
to provide meaningful guidance in defining the term.

The Secretary cites U.S. Silica Co., 32 FMSHRC 1699 (Nov. 2010) (ALJ) in
which Commission Administrative Law Judge Margaret Miller directly dealt with
the question with which this court is now confronted. Judge Miller first noted
that the standard does not use the term “travelway,” which is defined in Part
56 as a “passage, walk or way regularly used and designated for persons to go
from one place to another.” Id. at 1706 (quoting 30 C.F.R. § 56.2). She then
contrasted the regulatory definition of “travelway” with the dictionary
definitions of “passageway” (“a way that allows passage”) and “passage” (“a way
of exit or entrance: a road, path, channel, or course by which something passes”).
Id. (quoting Webster’s New Collegiate Dictionary 830 (1979)). Judge
Miller concluded that the cited area was both a passageway and a workplace, as
“people access it, pass through it, and perform work there.” Id. at
1707. She further concluded that work did not have to be ongoing and an
individual did not have to be traveling through the area for it to qualify as
such. Id.

The court agrees with Judge Miller’s analysis and finds that the cited area
qualifies as a “passageway” under the Webster’s New Collegiate
definitions of “passageway” and “passage.” The area may not have been regularly
used or designated for persons to go from one place to another, but those
factors are primarily relevant in determining whether or not an area is a
“travelway.” The cited area satisfies the much more limited requirement of
allowing passage, or a path by which miners may pass. Because the cited area
was a passageway that was not kept clean and orderly, the court finds the
violation existed as charged.

Finally, the court agrees with Soderlind’s determination that injury was
unlikely and negligence was low due to the summer outage and lack of activity
in the area, but that if an injury did occur it would result in lost workdays
or restricted duty, from sprains or strains. Tr. 297-98; GX-12 at 1. The court
finds that the violation’s gravity was serious, while the company’s negligence
was low.

THE
SAFE ACCESS VIOLATION

Citation
No. 8672113

Inspector King issued this citation
after observing “icicles hanging down in front of doors at the pump house.” Tr.

He found that the violation was reasonably likely to cause a fatal injury,
and that it was S&S. GX-6 at 1. He believed that the icicles could fall on
and seriously injure or kill a miner passing underneath them. Tr. 182. His
belief was supported by his recollection of a “fatality in Kentucky in [19]95”
caused by falling icicles. Tr. 182, 200-01. King testified that the icicles at
Northshore’s mine were between 6 and 24 inches in length and “an inch to an
inch and a quarter” in diameter. Tr. 186. Blood testified that they were “a
couple inches . . . to about a foot and a half long.” Tr. 206. King also
testified that the icicles were twelve feet above the ground and that they were
“big enough to cause damage if they hit you right.” Tr. 187, 189.

Northshore argues that “[t]he Secretary
did not produce any . . . evidence to detail the nature of the event in Kentucky
. . . [including] the size of the icicles or how far away they were from the
miner,” presumably suggesting that the icicle fatality King was relying on in
his gravity assessment may have involved much bigger icicles falling from a much
greater height. Resp. Br. 24; Tr. 193. The Secretary, however, points out that
both King and Blood testified that due to the rapid freezing and thawing cycle
in the region at that time of the year, icicles could grow considerably overnight.
Sec’y Br. 33; Tr. 198, 214. Any gravity determination would have to account for
the likelihood of the icicles developing and growing more dangerous, assuming
continued mining operation.

King’s notes suggest that the area was
accessed daily (GX-6 at 2; Tr. 185), but he also testified that the pump house
was “out by itself,” and that he could not remember if there was a lot of
traffic in the area. Tr. 190, 196. Blood clarified that the area was not an
access point for anything other than the sump pump (Tr. 204) and that employees
had “no need to go in there” unless the red light above the door indicated that
the room needed maintenance. Tr. 205. Furthermore, the area was not known to
“require . . . a lot of maintenance.” Id.

Blood also spelled out a number of
protections that minimized the risk of injury to miners from falling icicles.
First, overhangs on the buildings above the doors ensured that icicles would
not fall on miners while they were opening or closing a door (Tr. 206), which
is one scenario that King speculated could “cause [the icicles] to jar loose.”
Tr. 189. Second, the icicles were “tiny” and “fragile.” Tr. 206. Last, all
miners were also provided hard hats and winter coats with collars that icicles
would be unable to pierce. Tr. 207-08.

King designated Northshore’s negligence
as “high” due to the “open and obvious” nature of the violation, the expectation
that the violation should have been found and abated by the time of the
inspection, and the fact that the area was not flagged or barricaded off for
the benefit of other miners. Tr. 189-90. The company argues that King’s
negligence assessment was based on the false premise that Northshore employees
had been in the area all morning. Resp. Br. 30. Blood testified that, as far as
he was aware, no one had been at the pump house since the icicles developed the
previous day. Tr. 209.

Blood also testified that Northshore
places signs and barricades for “very large” icicles in “high areas,” or simply
takes them down, but that these icicles were not deemed hazardous. Tr. 209,

According to Blood, after they were cited, the icicles were knocked down
with a broom handle to abate the violation, and they “shattered into many
pieces and . . . little chunks.” Tr. 220. Further, Blood testified that
Northshore had never previously been cited for icicles hanging off of
overhangs, nor, to the best of his knowledge, had a company employee ever
suffered an icicle-related injury, in spite of icicles developing every spring
at the mine. Tr. 208-09.

THE
VIOLATION, ITS S&S NATURE, ITS GRAVITY, AND THE COMPANY’S NEGLIGENCE

Section 56.11001 states that, “Safe
means of access shall be provided and maintained to all working places.” The
court concludes that the Secretary has narrowly established the fact of a
violation by a preponderance of the evidence. Based on the photographic
evidence and areas of agreement in King’s and Blood’s testimony, the court finds
that the icicles were up to a foot and a half in length, roughly an inch in
diameter, and twelve feet above ground. See GX-6 at 3-4; Tr. 187, 206. The
specific icicles in this case rendered access to the pump house minimally
unsafe. However, the court finds the gravity and negligence to be considerably
lower than the Secretary has alleged. While the court accepts that the violation
contributed to a discrete safety hazard, it was unlikely that an injury would
result, and such an injury could not reasonably be expected to have been fatal
or even permanently disabling. Therefore, the S&S designation cannot stand.

The court credits Blood’s testimony on
the infrequency with which the area was accessed. See Tr. 204-05. His
testimony that the pump house was not an access point for any other area, that
operators would only enter if maintenance was required, and that maintenance
was not often required went unrefuted and leads most naturally to the
conclusion that the entrance was not frequently accessed. Id. King’s own
testimony about the area being out by itself and his lack of recollection of
traffic in the area support this conclusion. Tr. 190, 196. The court also
agrees with Conboy that the precautions taken by Northshore significantly
decreased the likelihood of an icicle directly contacting a miner. See Tr.
207-08. For an injury to occur, an icicle would have to fall while a miner was
looking up or was positioned in such a way to expose an unprotected part of his
or her face or body to the falling icicle. And the miner would have to stop far
enough away from the door to avoid the shelter of the overhang when the icicle
fell. In every other conceivable scenario, the combination of a hard hat,
winter coat, and the overhang was sufficient to prevent or to significantly
minimize injury.

Given that the icicles shattered
harmlessly upon contact during the violation’s abatement, the court finds it
likely that the only injury that could reasonably be expected would at most involve
lost workdays or restricted duty, although this injury still renders the
violation reasonably serious. See Tr. 206.

The Secretary did not demonstrate that
the cited icicles bore any resemblance to those that may have proven fatal in
the case King recalled (Tr. 193), and although the Secretary is correct to
point out that, assuming continued mining operations, the rapid thawing and
cooling cycle could have caused the icicles to grow to dangerous proportions
overnight, (Sec’y Br. 33; Tr. 198, 214), the fluctuating temperature could just
as easily have caused the icicles to shrink to entirely harmless proportions.
Moreover, Northshore’s stated practice of dealing with more hazardous icicles
and the company’s absence of any history of injuries from such icicles indicate
that, in the event of continued mining operations, Northshore likely would have
knocked down the icicles before they harmed anyone. See Tr. 208-09, 220.

Finally, the court finds that Northshore’s
negligence was low. It is unlikely anyone had encountered the icicles between
their prior night’s formation and the afternoon inspection, given the
remoteness of the pump house and the absence of any need to visit it that day. See
Tr. 190, 196, 204-05. Further, had anyone visited the area, he or she might
well have failed to recognize a safety hazard. The court accepts Blood’s
testimony that icicles are common in the area and that the cited icicles were
not especially hazardous. See Tr. 208-09, 220. The court further notes
that Northshore’s lack of a history of icicle-related injuries and
icicle-related violations would not necessarily alert the company to the
potential safety hazards of otherwise routine icicles. See Tr. 208-09.

THE
ICY WALKWAY VIOLATION

Citation
No. 8672114

King cited Northshore for failing to
sand or salt what he deemed to be a “slick ice” walkway, approximately “six
[feet] wide and 40 inches deep,” in front of the pump house entrance. Tr. 223,
226.[12]
The icy walkway created a slip and fall hazard, which King designated as
S&S. GX-7 at 1. King testified that the ice was “slicker” than normal because
it was “starting to melt.” Tr. 223. He also believed that Northshore employees
contributed to this hazard by “tromp[ing] down” or “walking over the snow” that
later became ice in front of the entrance. Tr. 227-28. Footprints near the
entrance indicated to King that miners traveled through the area at some point
between the buildup of snow and the formation of ice without clearing the snow.
See Sec’y. Br. 37; Tr. 227.

King thought that an injury was
reasonably likely because the area was, from what the operator had told him,
“accessed daily.” Tr. 227. The injury, whether it be “a sprain, a bone bruise, [or]
a broken arm,” could reasonably be expected to cause lost workdays or
restricted duty. Tr. 228. King viewed Northshore’s negligence as high because
the hazard was “open” and could have been dealt with simply by placing a
“bucket of sand…by the entrance.” Tr. 229. Additionally, the area was not
flagged or barricaded for the protection of miners. Tr. 230.

Blood testified that the ice was not in
fact slippery. Tr. 238. Instead, it was “uneven

and
. . . hard to walk on.” Id. Blood also disagreed with King’s contention
that the area was “accessed daily.” Tr. 228. Being that this was the same area
cited in Citation No. 8672113, Northshore notes that Blood’s testimony for that
violation regarding the infrequency of access applies equally here. See Resp.
Br. 36. Northshore also argues that infrequent access mitigates against a high
negligence finding by making it less likely that any agent of Northshore knew
or should have known about the hazard. See Resp. Br. 38. Additionally, Northshore
notes that the company provided buckets of sand and tailings “inside [all
Northshore] doorways,” so that miners could deal with this problem when it arose,
and the company provided training to all employees to ensure compliance. Resp.
Br. 38, Tr. 237-38. The Secretary responds that these measures are inadequate
because, as Blood admitted, a miner would still have to traverse the unsalted
icy terrain to get to the bucket and take care of the hazard. See Sec’y.
Br. 39, Tr. 242.

THE
VIOLATION, ITS S&S NATURE, ITS GRAVITY, AND THE COMPANY’S NEGLIGENCE

Section 56.11016 requires regularly used
walkways and travelways to be “sanded, salted, or cleared of snow and ice as
soon as practicable.” There is no dispute that there was snow or ice leading up
to the pump house entrance, and that the cited area had not been sanded,
salted, or cleared. See Tr. 223, 238. The preponderance of evidence
further suggests that Northshore failed to clear the snow that later became ice
when it would have been practicable to do so. This should have occurred when
someone walked through the snow earlier, causing the footprints that can be
seen in the inspector’s photograph of the cited entrance. See GX-7 at 4;
Tr. 227. Therefore, the court finds that Northshore violated the standard.

There is, however, insufficient evidence
to support an S&S designation and a high negligence finding. As with the
prior citation, and for the same reasons, the court credits Blood’s testimony
that the area was infrequently accessed. See Tr. 204-05. [13]
And given both Blood’s testimony that he did not find the ice to be slippery
when he walked on top of it and the indeterminate amount of ice in the
Government’s photographs, the court is not convinced that the ice was slippery
or extensive enough to injure the rare individual that might walk through there.
See GX-7 at 3-8; Tr. 238. The chance of injury was unlikely. Therefore,
the inspector’s S&S finding must be vacated. However, were a slip and fall
injury to occur on the ice, it was reasonable to expect lost workdays or
restricted duty to result, just as King determined. Tr. 228. Although the
violation was not S&S, it was nonetheless serious.

As for negligence, the court finds that
the remoteness of the area and Northshore’s institution of a policy to address icy
entrances when miners encounter them slightly mitigate the company’s
negligence. See Tr. 237-38. The court concludes that the company’s
negligence was “moderate” rather than “high.”

THE
ELECTRICAL JUNCTION BOX VIOLATIONS

Citation
Nos. 8672520 and 8672527

Both of these citations deal with closely
related facts and issues. Citation No. 8672520 involved an electrical junction
box with its door ajar and holes exposing live, energized 120 volt wiring
inside. Tr. 327-28. The cover plate door was “rusted through.” Tr. 335. Citation
No. 8672527 involved an electrical junction box near the No. 161 conveyer belt
with the cover plate and the box itself “corroded through,” according to
Soderlind, exposing the same type of wiring, although the wires were not
energized. Tr. 373-74, 386. There was no evidence in either case that the wires
lacked insulation (see Tr. 335, 382), but Soderlind noted that both
areas were wet and therefore water could get inside the boxes through the
exposed areas and damage the inner conductors. Tr. 327, 339, 375-76. Soderlind
concluded that rust had formed on the first box as a result of “water [being]
sprayed in the area to clear the area and . . . splash[ing] up” onto the box.
Tr. 333. He did not know how the second box came to be in the condition he
cited. Tr. 379

Soderlind designated each alleged violation
as Non-S&S. GX-9 at 1, GX-11 at 1. The first did not occur in a regularly
accessed area; the second was “behind a handrail” and the “belt [in the area]
was shut down” for the summer outage, making contact with the box unlikely. Tr.
328, 374-75. But, Soderlind determined that were a miner to experience an
electrical shock from either box, a fatal injury could be reasonably expected.
Tr. 328, 375. Soderlind stated that “120 volts has been known to kill people .
. . on mine sites.” Tr. 329. However, Northshore points out that Soderlind also
acknowledged that individuals “get shocked by 120 volts, probably every day,”
without injury, (Resp. Br. 57, Tr. 329), and that Soderlind had actually
written “lost workdays or restricted duties” as the injury that could
reasonably be expected when he wrote a citation for a similar violation. Tr.

Soderlind maintained that he “didn’t evaluate [the cited condition]
correctly” when he wrote the citation to which Northshore refers. Id.

The primary dispute over Soderlind’s
“fatal” designation in both citations concerns the circumstances under which a
fatal shock could plausibly occur. Chris Goerdt, an electrical supervisor for
Northshore, testified that for a fatality to occur, “a person would have to

have
. . . one hand in the box . . . making contact with the live wires” and the
other hand either “on steel” or also in the box. Tr. 364.[14]
The company argues that this would not be reasonably likely to occur with
either box, in part because both boxes had fully insulated wires. See Resp.
Br. 56-57, 63-64. Goerdt also felt this would not happen in the cited area in
Citation No. 8672520 because of the inability to “fit [one’s] hand in the box
without it being open” and because of the difficulty of even reaching the box
in the first place. Tr. 364. Goerdt and Conboy testified that this box is
located “underneath [a] conveyer” belt, past support beams, and that there was
no reason to cross the beams except “to do work on that electrical [junction]
box” itself, in which case “the power [would be] locked out.” Tr. 364, 345-46.
The Secretary argues that someone might have to enter the area and cross the
beams in order to replace the tail pulley guards from the No. 44 conveyor next
to the box, and Conboy agreed that this was a possibility. Sec’y Br. 26-27; Tr.

Soderlind testified that a miner could contact the second box while
“sweeping[,] shoveling[,] or changing a...belt.” Tr. 376-77.

The Secretary also does not agree that a
miner would need to reach inside the box itself to be shocked. See Sec’y
Br. 27, 30. Soderlind and Goerdt both agreed that the insulation for the wires
could be damaged as a result of water being sprayed on them and because of the
conditions outside of the box. See Tr. 339, 368, 384. [15]
Goerdt also agreed that if an exposed wire were to contact the inside of the
box and the grounding failed, “it could energize the metal around the box” and
“any other metal component that the box might be touching.” Tr. 367-68. The
Secretary argues, in such a circumstance, that the entire box and metal
framework around it would become an electrocution hazard. Sec’y Br. 27-28. Additionally,
Soderlind testified that there was “a lot of chance to make contact with metal
or water [in the area] and complete the circuit.” Tr. 329. He clarified later
that since “water is a conductor,” the combination of water and metal was “just
increasing the likelihood that electricity would flow through” an individual,
from either box into a conductor. Tr. 376.

Regarding Citation 8672520, Soderlind
designated Northshore’s negligence as high, because the violation was obvious
and he had written “the same citation for the same box under the same condition
on an inspection that was two years prior.” Tr. 329-31. The only difference
this time was “there [were] holes that actually had rusted through.” Tr. 332.
The company addressed that problem at the time of the original citation by
re-attaching a loose cover. Tr. 336. Conboy did not believe that two years was
an inordinate amount of time between maintenance efforts when dealing with
“thousands of boxes” along “hundreds of miles of conduit.” Tr. 352. But Soderlind’s
concern was that the company did not appear to have done anything to address
the problem of corrosion from splashing water since he first observed it two
years prior. Tr. 338-39. Soderlind concluded that the rusting must have been
occurring for “a long time” to generate these types of “holes that show . . . through.”
Tr. 330. Conboy responded that no mention was ever made of the need to
alleviate a problem of water splashing in the original citation that was issued
two years prior. Tr. 351. But Conboy did not accompany Soderlind during the
issuance of that prior citation and was not privy to Soderlind’s conversations
regarding abatement of the citation at the time. Tr. 358.

As for Citation 8672527, Soderlind found
Northshore’s negligence to be moderate because the violation was “open and
obvious,” it was his understanding the area was inspected “at least once per
shift,” he was told that supervisors “try to get to every area at least [once
a] week,” and his experience led him to conclude that the rusting he observed
happened over the course of “at least a year, [or] longer.” Tr. 377-78.

Northshore argues that the normal mining
conditions in the area undercut Soderlind’s negligence analysis. See Resp.
Br. 65. According to Conboy, Soderlind observed the area during the company’s
summer outage when the hazard was “easy to see.” Tr. 390-92. Conboy testified
that no work was planned in the area during the two week summer outage, so no
employees passed by the belt when the box was easier to see. Tr. 393, 396. When
the belt was actually running and employees were present, Conboy
felt that the violation would not be open and obvious due to “heavy steam” in
the area clouding visibility and the box’s obscured “location, next to . . .
guarding, behind a handrail.” Tr. 391-92.

THE
VIOLATIONS, THEIR GRAVITY, AND THE COMPANY’S NEGLIGENCE

The Violations

Standard 56.12032 mandates that
inspection and cover plates shall be kept in place at all times on electrical
equipment and junction boxes. Neither party expressly disputes that Northshore
violated this section by having an open cover plate on one box and a cover
plate with holes on each box, and the court agrees. In the first citation, the
cover was partially open and was therefore not kept in place. In addition, both
the first and second violations deal with covers that had rusted through,
conditions that have been held to be functionally equivalent to open covers. See,
e.g., LTM Inc. – Knife River Materials, 33 FMSHRC 1210, 1238 (May
2011) (ALJ) (finding a violation of the standard for holes in electrical panel
boxes and noting that “the regulation has been applied to require that there be
no openings in electrical control boxes”). The court finds that these
conditions violated the standard.

The Gravity of the Violations

The court finds that it was unlikely an
injury would result from either violation for the very reasons the Secretary
has offered. Both boxes were in remote or, at the time, empty areas, and miners
were unlikely to make contact with the boxes and their contents. Tr. 328,
374-75.

However, the court finds that the injury
that could reasonably be expected in each case would have been fatal. The
Secretary presented a more than plausible scenario where outside conditions and
the water that potentially damaged the boxes could also damage the insulation, exposing
the conductor wiring, and those wires could energize the boxes themselves if
the grounding failed. A miner cleaning or replacing a guard or belt could very
well contact the box and “complete the circuit,” with the amount of metal and
water in each room serving as a conductor. See Sec’y Br. 27-28; see
also Tr. 329, 339, 367-68. The court finds that both violations were very
serious.

The Company’s Negligence

The court finds “high” negligence on the
company’s part with regard to Citation No. 8672520. Northshore was cited for a
violation of the same standard involving the same box two years prior and had
not made any attempt to address the issue of rusting which left the inner wires
exposed. Tr. 329-31. Regardless of whether Soderlind expressed concern over the
rusting or splashing issues two years prior or allowed Northshore to abate the
violation without addressing them, the court credits Soderlinds testimony that
the issues existed at the time. Tr. 339. The initial citation should have
alerted Northshore to the need to address any and all issues with this box that
were present at the time and to closely monitor the situation as mining
continued.

The court finds Northshore to be
moderately negligent with regard to Citation No. 8672527. The court accepts as
reasonable Northshore’s contention that it did not have an opportunity to
identify the violation during the two week summer outage, and that conditions significantly
impaired visibility in the area prior to the outage. Tr. 391-93. In the court’s
view, both factors serve to mitigate the company’s negligence. This stated, the
court agrees with the Secretary that the company should have discovered the
very large holes in the junction box during the year or more that the Secretary
credibly maintains the rusting occurred. See Tr. 377-78. The poor
visibility only increased Northshore’s duty to inspect the area carefully,
which the court finds it failed to do.

THE
GUARDING VIOLATION

Citation
No. 8672537

Soderlind
issued this citation for a violation of Section 56.14107(a) on July 1, 2013,
after determining that adequate guarding needed to be installed at the head of
the No. 163 conveyer belt to protect miners from the shaft and head pulley. Tr.
397, 399. The head pulley was “partially guarded” by a “plate steel” (Tr. 400,
414-15), but the existing guard left “a square opening over the shaft,” a
smaller opening to the right of the shaft, and a larger opening in the “top
right-hand corner” exposing the pulley itself. Tr. 402, 405; see also GX-13
at 7. Soderlind was concerned about the risk of a miner getting an arm
entangled with the rotating pulley or shaft through the unguarded areas. Tr.

Soderlind’s main focus was on the “center piece that was cut out,” (see
GX-13 at 7) (labeled “unguarded area”), because the “bolted coupling on the
inside” of that area would “tend to grab [one’s] clothing” if it got caught
inside. Tr. 430-31. That particular opening to the shaft was located behind a
pillow block (Tr. 422) and was “four to five feet” above the ground, while the
larger opening to the right was, according to Soderlind’s unmeasured estimation,
“six to seven feet up” above the ground. Tr. 433-34.

Soderlind
designated the violation non-S&S and unlikely to lead to injury due to the
remoteness of the area. Tr. 403, GX-13 at 1. But by that same token, Soderlind
concluded that the injury that could reasonably be expected would be “fatal,”
since Northshore might not “discover somebody missing an arm or a hand” in such
a remote location until after a miner had already “[bled] out.” Tr. 404. Additionally,
Soderlind deemed Northshore to be moderately negligent because, he testified,
he had already “made a strong recommendation” to the company “a week prior”
that it “need[ed] to get this [area] guarded better.” Tr. 406. According to
Soderlind, he did not cite Northshore at the time because the conveyor belt was
not running. Tr. 411. But when he returned to the area a week later and found
that the belt was running and the head pulley was still inadequately guarded, Soderlind
decided to issue a citation for a violation of section 56.14107(a) along with a
finding that the company was moderately negligent. Tr. 401.

Conboy’s
recollection was quite different. Conboy recalled Soderlind telling him during
the previous week’s inspection that the head pulley was “primarily guarded by
location” and therefore did not need further guarding. Tr. 421. In other words,
“based on [the hazard’s] location, a miner would not be able to make contact with
the moving machine parts.” Tr. 407. Soderlind’s inspection notes from the prior
week’s walk through of the area do not reference this conversation near the
head of the No. 163 conveyor belt, neither corroborating his own account nor
Conboy’s. See Resp. Br. 75, see also RX-107. Conboy’s notes from
that week are similarly silent on this point. See RX-103. But, Conboy recalled
a conversation on June 26, 2013, almost a week prior, about “the tail of the
[No.] 63” conveyer belt, which “run[s] parallel” to the No. 163 belt, albeit “a
thousand feet…or more” from the cited area. Tr. 419. According to Conboy,
Soderlind made guarding recommendations for the No. 63 belt, and Northshore
promptly complied. Tr. 420. Conboy’s June 26 notes are fully consistent with
this account. See RX-103. Soderlind’s June 26 notes also reference this
recommendation shortly after mentioning his inspection of the No. 63 conveyer
belt tail. See RX-107 at 15.

Conboy
also testified that the cited area of the head pulley had to his knowledge
remained in its partially guarded state going back to the structure’s creation
in 1956, yet had never been cited despite regular MSHA inspections of that
area. Tr. 417.

The
Violation

Section
56.14107(a) requires, in relevant part, “Moving machine parts shall be guarded
to protect persons from contacting….pulleys,…shafts,…and similar moving parts
that can cause injury.” Section 56.14107(b) further states, “Guards shall not
be required where the exposed moving parts are at least seven feet away from
walking or working surfaces.” The company raises two arguments for why
Northshore should not be held liable – first pleading adequate guarding, second
pleading inadequate notice. See Resp. Br. 70-77. The court finds that
second argument to be persuasive and dispositive in this citation. Effectively,
Northshore is arguing that the citation should be vacated for lack of notice of
the Secretary’s interpretation of the standard as applied to the cited area,
regardless of whether this court agrees with that interpretation and
application.[16]
See Resp. Br. 73-77.

The
Commission has held that a “broad [mandatory standard] must afford reasonable
notice of what is required or proscribed.” U.S. Steel Corp., 5 FMSHRC 3, 4
(Jan. 1983). The
test for whether an operator has had fair notice is “whether a reasonably
prudent person familiar with the mining industry and the protective purposes of
the standard would have recognized the specific prohibition or requirement of
the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990).
In applying this standard, the Commission has taken into account a wide variety
of factors, including the text of the regulation, its placement in the overall
regulatory scheme, its regulatory history, the consistency of the agency’s
enforcement, and whether MSHA has published notices informing the regulated
community with “ascertainable certainty” of its interpretation of the standard
in question. Lodestar Energy, Inc., 24 FMSHRC 689, 694–95 (July 2002).

In
Alan Lee Good, an individual doing business as Good Construction,
23 FMSHRC 995 (Sept. 2001), the Commission applied these principles to the
Secretary’s enforcement of Section 56.14107(a), the standard at issue here. In that
case, Commissioners Jordan and Beatty concluded the judge erred in applying the
“reasonably prudent person test” and believed the case should be remanded for
that reason. Id. at 1004-07. Chairman Verheggen and Commissioner Riley
concluded the operator did not have notice of the Secretary’s interpretation of
the standard and would have reversed his decision and vacated the subject
guarding violations. However, to avoid an evenly split decision that would have
left standing the judge’s affirmance of the citations, the Chairman and
Commissioner Riley joined Commissioner Jordan and Beatty in agreeing to remand
the case. Id. at 1009-10. Although the Commissioners produced a split
decision, all agreed that the standard was ambiguous as applied, and all
focused heavily on the inconsistency of prior enforcement as a key factor in
determining whether the “reasonably prudent person” test had been satisfied.

This
court does the same. The standard does not clearly specify the extent of
guarding necessary in cases such as this where significant guarding efforts are
already in place. Accordingly, this court finds the standard to be broad and
ambiguous as applied to these facts. MSHA agrees hazards that are seven feet or
more above the ground are guarded by location. 30 C.F.R. § 56.14107(b), Tr. 430.
Soderlind testified that at least one of the exposed moving parts in this
citation may have been up to seven feet high, although he did not measure the
distance. Tr. 434. The Secretary therefore did not meet his burden to
demonstrate inadequate guarding for that particular hazard. The other exposed
area of primary concern required an individual to reach over a pillow block to
access it. Tr. 433. Conboy testified that he believed the specific exposure to
be adequately guarded due to the pillow block in front of it. Tr. 422. A
reasonably prudent person familiar with the mining industry and the protective
purposes of the standard could have easily agreed and failed to recognize this as
a hazard that required guarding.

Further,
the court finds that the inconsistency of the Secretary’s prior enforcement at
this mine is serious enough to outweigh all other notice considerations in a
“reasonably prudent person” test. Conboy’s testimony is credible and
raises serious doubts about whether Soderlind ever warned Northshore about the
potential violation, instead of suggesting that it was adequately guarded. See
Tr. 419-21. Soderlind lacks any documentation supporting his claim that he had
warned Northshore; indeed, his own notes, as well as Conboy’s, from a week
prior to the citation reinforce Conboy’s claim that Soderlind had only warned the
company about a different unguarded area. See RX-103, 107. Consequently,
this court finds Conboy’s version of events more credible than Soderlind’s,
including his testimony that Soderlind had informed him the cited area was
adequately guarded within the past week. In the face of this explicit
reassurance from Soderlind and a long history of non-enforcement from MSHA, Citation
No. 8672537 indeed “amounts to a grossly inconsistent enforcement practice”
just as Northshore contends. Resp. Br. 77. Accordingly the citation will be
vacated for a lack of notice.

OTHER
CIVIL PENALTY CRITERIA

The
court has found violations and it must assess civil penalties taking into
account the statutory civil penalty criteria. 30 U.S.C. § 820(i).

History
of Previous Violations

The
mine’s history of violations is reflected in a report from MSHA's database. GX-1.
The report lists violations issued at the mine and indicates that 234 violations
became final between December 2011 and June 2013. The court accepts the figures
in the report as accurate and finds that the exhibit reflects a large history.

Size
of the Operator

The
parties did not stipulate to the size of the operator, however on Exhibit A of
the civil penalty petitions, the Secretary recorded 2,410,235 controller hours
worked for the operator and 812,741 hours worked for the mine, and assigned 7
out of a possible 10 points for the size of the operator and 10 out of a
possible 15 points for the size of the mine. Based on this record, I find that
Northshore is a moderately large operator.

Ability
to Continue in Business

The
parties stipulated that the proposed penalties will not affect Northshore’s
ability to continue in business, and the court finds that the same is true for
the penalties assessed below. Tr. 15; Stip 9.

Good
Faith Abatement

The
parties stipulated that Northshore terminated the conditions giving rise to the
violations in a good faith manner. Tr. 15; Stip. 8.

CIVIL
PENALTY ASSESSMENTS

Citation
No. 8672460

The
court has found that the violation was serious, that an accident was reasonably
likely, and that the violation was due to the company’s low negligence. The
Secretary proposed a civil penalty of $1,304.00, but given these findings and
the civil penalty criteria discussed above, the court finds that a penalty of $586.00
is appropriate. The court has departed from the proposed penalty because it has
found the company’s negligence to be lower than the Secretary alleged.

Citation
No. 8672461

Citation
No. 8672113

The
court has found that the violation was serious although an accident was
unlikely and that the violation was due to the company’s low negligence. The
Secretary proposed a civil penalty of $8,209.00, but given these findings and
the civil penalty criteria discussed above, the court finds that a penalty of $250.00
is appropriate. The court has departed from the proposed penalty because it has
found the negligence, likelihood of injury, and severity of injury that could
reasonably be expected to be lower than the Secretary alleged.

Citation
No. 8672114

The
court has found that the violation was serious although an accident was
unlikely and that the violation was due to the company’s moderate negligence. The
Secretary proposed a civil penalty of $2,473.00, but given these findings and
the civil penalty criteria discussed above, the court finds that a penalty of $300.00
is appropriate. The court has departed from the proposed penalty because it has
found the negligence and likelihood of injury to be lower than the Secretary
alleged.

Citation
No. 8672520

The
court has found that the violation was very serious although an accident was
unlikely and that the violation was due to the company’s high negligence. The
Secretary proposed a civil penalty of $11,306, and given these findings and the
civil penalty criteria discussed above, the court finds that a penalty of $11,306
is appropriate.

Citation
No. 8672522

The
court has found that the violation was serious, that an accident was reasonably
likely, and that the violation was due to the company’s low negligence. The
Secretary has proposed a penalty of $3,405.00, but given these findings and the
civil penalty criteria discussed above, the court finds that a penalty of $1,400.00
is appropriate. The court has departed from the proposed penalty because it has
found the company’s negligence to be lower than the Secretary alleged.

Citation
No. 8672527

The
court has found that the violation was very serious although an accident was
unlikely and that the violation was due to the company’s moderate negligence. The
Secretary has proposed a penalty of $4,689.00, and given these findings and the
civil penalty criteria discussed above, the court finds that a penalty of $4,689.00
is appropriate.

Citation
No. 8672530

The
court has found that the violation was serious although an accident was
unlikely and that the violation was due to the company’s low negligence. The
Secretary has proposed a penalty of $329, and given these findings and the
civil penalty criteria discussed above, the court finds that a penalty of $392
is appropriate.

Citation
No. 8672537

The
court has found that the Secretary did not prove the alleged violation.
Therefore, a penalty cannot be assessed.

SETTLED
VIOLATIONS

The
parties have agreed to the following settlements:

Docket No. LAKE
2013-458-M

Citation
No.
Date 30 C.F.R. § Proposed
Penalty Assessed Penalty

8672441
2/20/13 56.12004 $499 $499

Northshore
will accept the citation as written and pay the proposed penalty. Tr. 436.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672446 2/25/13 56.12004
$392 $220

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 436.

Citation
No. Date 30 C.F.R. §
Proposed Penalty Assessed Penalty

8672447 2/25/13 56.12032
$425 $425

Northshore will accept the citation as
written and pay the proposed penalty. Tr. 436.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672451 2/26/13 56.12004
$392 $220

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 436.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672452 2/26/13 56.12032
$425 $270

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 436.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672458
3/5/13 56.12030 $745 $500

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 436.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672459 3/5/13
56.12032 $1,111 $800

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 437.

Citation
No. Date 30 C.F.R. §
Proposed Penalty Assessed Penalty

8672465 3/6/13
56.12008 $334 $200

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 437.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672111 3/12/13 56.20003(b)
$4,329 $2,500

The
Secretary will delete the inspector’s finding that the violation was S&S
and will change the inspector’s evaluation of the likelihood of injury from
reasonably likely to unlikely. Tr. 437.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672112 3/12/13 56.12032
$5,961 $2,600

The
Secretary will delete the inspector’s finding that the violation was S&S
and will change the inspector’s evaluation of the likelihood of injury from
reasonably likely to unlikely. Tr. 437.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672116
3/12/13 56.11016 $2,473 $1,500

The
Secretary will delete the inspector’s finding that the violation was S&S, will
change the inspector’s evaluation of the likelihood of injury from reasonably
likely to unlikely, and will change the negligence finding from high to
moderate. Tr. 437.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672117 3/12/13 56.12004
$1,111 $950

The
Secretary will reduce the proposed penalty. Tr. 437.

Citation
No. Date 30 C.F.R. §
Proposed Penalty Assessed Penalty

8672118 3/12/13 56.20003(a)
$362 $100

The Secretary will change the
inspector’s negligence finding from moderate to low.[17]

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672120 3/13/13 56.12004
$1,111 $800

The
Secretary will change the inspector’s negligence finding from moderate to low.
Tr. 437.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672121 3/13/13 56.12032
$1,203 $800

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling” and will change the
negligence finding from “moderate” to “low.”

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8735065
3/18/13 56.12032 $362 $362

Northshore
will accept the citation as written and pay the proposed penalty. Tr. 437.

Docket No. LAKE
2013–596-M

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672119 3/12/13 56.14100(b)
$2,473 $722

The
Secretary will delete the inspector’s finding that the violation was S&S
and will change the inspector’s evaluation of the likelihood of injury from
reasonably likely to unlikely. Tr. 437-38.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672505 6/11/13 56.20003(a)
$7,578 $6,798

The
Secretary will reduce the proposed penalty. Tr. 438.

Docket No. LAKE
2013-674-M

Citation
No.
Date 30 C.F.R. § Proposed
Penalty Assessed Penalty

8672525
6/19/13 56.12018 $2,901 $1,900

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from fatal to permanently disabling and will change the
negligence from moderate to low. Tr. 438.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672528 6/24/13 56.12008
$1,203 $900

The
Secretary will reduce the proposed penalty. Tr. 438.

Citation
No. Date 30 C.F.R. §
Proposed Penalty Assessed Penalty

8672533 7/1/13
56.12032 $1,530 $850

The Secretary will change the
inspector’s finding of the injury that could reasonably be expected from fatal
to lost workdays or restricted duties. Tr. 438.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672534 7/1/13
56.12032 $1,530 $500

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from fatal to lost workdays or restricted duties. Tr.
438.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672536 7/1/13
56.12032 $1,530 $1,070

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 438.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672547
7/11/13 56.12032 $1,530 $1,070

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 438.

Citation
No. Date 30
C.F.R. § Proposed Penalty Assessed
Penalty

8672549 7/15/13 56.12032
$1,530 $1,070

The
Secretary will change the inspector’s finding of the injury that could
reasonably be expected from “fatal” to “permanently disabling.” Tr. 438.

ORDER

In view of the
above findings, conclusions, and settlement approvals, within 30 days of the
date of this decision the Secretary IS ORDERED to:

Modify
Citation
Nos. 8672460, 8672461, and 8672522 to reduce the level of negligence from
“moderate” to “low;” modify Citation No. 8672113 to reduce the likelihood of
injury from “reasonably likely” to “unlikely,” to reduce the level of injury
that could reasonably be expected from “fatal” to “lost workdays or restricted
duty,” to delete the “significant and substantial” designation, and to reduce
the level of negligence from “high” to “low;” modify Citation No. 8672114 to
reduce the likelihood of injury from “reasonably likely” to “unlikely,” to
delete the “significant and substantial” designation, and to reduce the level
of negligence from “high” to “moderate;” and vacate Citation No. 8672537.

Further, if he has not already done so,
within 30 days of the date of this decision, the Secretary SHALL modify
Citation Nos. 8672446, 8672451, 8672452, 8672458, 8672459, 8672465, 8672536,
8672547, and 8672549 to reduce the level of injury that could reasonably be
expected from “fatal” to “permanently disabling;” modify Citation Nos. 8672111,
8672112, and 8672119 to
reduce the likelihood of injury from “reasonably likely” to “unlikely” and to
delete the “significant and substantial” designation; modify Citation No.
8672116 to reduce the likelihood of injury from “reasonably likely” to
“unlikely,” to delete the “significant and substantial” designation, and to
reduce the level of negligence from “high” to “moderate;” modify Citation Nos.
8672118 and 8672120 to reduce the level of negligence from “moderate” to “low;”
modify Citation Nos. 8672121 and 8672525 to reduce the level of injury that
could reasonably be expected from “fatal” to “permanently disabling” and to
reduce the level of negligence from “moderate” to “low;” and modify Citation
Nos. 8672533 and 8672534 to reduce the level of injury that could reasonably be
expected from “fatal” to “lost workdays or restricted duty.”

Finally, within 30 days of the date of
this decision, the company SHALL PAY civil penalties in the amount of $19,509.00
for the contested violations found above and pay $27,626.00 for the settled
violations. Upon payment of the civil penalties, modification of the citations,
and vacation of the citations, this proceeding IS DISMISSED.

/s/ David F.
Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:

Carol
Liang, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Blvd., Suite 216, Denver, CO 802024

Ryan
Pardue, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Blvd., Suite 216, Denver, CO 802024

Arthur
M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401
Liberty Ave., Pittsburgh, PA 15222

/rd

[1]
The
standards are set forth at 30 C.F.R. Part 56 (safety).

[2]
In this
opinion, the Secretary’s post-hearing brief is abbreviated as “Sec’y Br.”
Northshore’s post-hearing brief is abbreviated as “Resp. Br.”

[3]
An S&S
violation is a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a … mine safety or health
hazard.” 30 U.S.C. § 814(d). A violation is properly designated 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., Nat'l Gypsum
Co. 3 FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S
nature of a violation, the Secretary 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 will be of a reasonably serious nature.

Mathies
Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc. 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861
F. 2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria).

[4]
The
facility to which the term refers is Northshore’s taconite pellet processing
plant, although it also shares its name with the operator of the mine.

[5]
In this
opinion, the abbreviation “Tr.” refers to the hearing transcript.

[6]
The iron
ore is concentrated into powder form through a series of mills and separators
in the concentrator plant, mixed with binding agents and turned into rounded
pellets in the pellet plant, and sent into a load-out facility or to the yard
to await shipment. A number of conveyor belts carry the material in its various
states to each facility. The pump house allows the company to pump water used
to process the ore back into the system instead of into Lake Superior. The
contested citations in this matter were issued in the concentrator, pellet
plant, pump house entrance, and the yards and dock area. Tr. 49-50, 203-04.

[7]
Soderlind
testified that he “probably inspected 80 percent of the mine,” while “King came
up to help with the inspection to try to get it done faster.” Id. At the
time of the hearing, Soderlind was an MSHA field office supervisor. He had
worked as an MSHA inspector for five and a half years. Tr. 18. He had
experience with “[n]umerous different types of mines” and had inspected the
Northshore Mine “at least four times,” each inspection lasting about “three to
four” months. Tr. 20-21. King was an MSHA inspector who had worked in various
capacities for the agency since 2005. Tr. 112.

[8]
Conboy
also testified that six months earlier a “slip-test” conducted in the same area
found a similar type of mixture to be “not slippery.” But the court chooses to
disregard this testimony because the test was conducted too far in the past to
offer a reliable comparison, and Conboy himself admitted that the consistency
of spills could be different on different days. Tr. 62-70, 76.

[9]
Presumably,
Conboy was referring to standards for safe footwear set by the American
National Standards Institute (“ANSI”).

[10]
The full
“Housekeeping and Orderliness” paragraph of the Master Service Agreement
states:

In additional [sic] to any
requirements in the Agreement, Provider agrees that all equipment, tools,
materials and other apparatus will be stored, stacked, placed, temporarily
spotted or setup [sic] in such a manner as to maintain safe egress and a
clean and orderly workplace. Provider agrees to remove all debris and trash
daily. Should Company or its representative deem the Provider in nonconformance
with these requirements, Company or its representative will direct Provider to
take immediate corrective action. Should the Provider neglect to take such
corrective measures, Company may terminate the Agreement or implement the
corrective measures at the expense of Provider and may also deduct the cost
thereof from any payments due or to become due to Provider.

RX-73 at 15.

[11]
Form
5000-23 “provides a means for mine operators to record and certify Part 48
mandatory training received by miners.” MSHA - Forms and Online
Filings – Form 5000-23 Certificate of Training, Mine Safety and Health
Administration, http://www.msha.gov/forms/elawsforms/5000-23.htm (last visited
Feb. 24, 2015)

[12]
This was
the same structure discussed in Citation No. 8672113. Tr. 241.

[13]
While
neither party has raised the issue, the court understands that its finding that
the area was infrequently accessed could be viewed as inconsistent with its
finding of a violation, since the standard only applies to regularly used
walkways and travelways. However, the court accepts that the walkway was
“regularly” used, as the term is used in the standard, even if it was not
traveled frequently enough to sustain an S&S designation.

[14]
This is
apparently because electricity is more likely to flow through an individual if
he is contacting another conductor, such as steel.

[15]
The
Secretary’s questions during direct and cross-examination made reference to
damage to both the “inner conductors” and “insulation” of the wires. The court
assumes that the Secretary was primarily concerned with damage to the
insulation.

[16]
The court
recognizes that other courts and judges have come to different conclusions on
questions of notice involving this standard. For cases rejecting inadequate
notice arguments for guarding violations, see Mainline Rock & Ballast, Inc.
v. Sec'y of Labor,
693 F.3d 1181 (10th Cir. 2012); Crimson Stone v. FMSHRC, 198 F. App'x
846 (11th Cir. 2006); Highland Enterprises, LLC, 34 FMSHRC 1633 (July 2012)
(ALJ); and D. Holcomb & Co., 33 FMSHRC 1435 (June 2011) (ALJ).
Unlike the present matter before the court, however, none of the above cases
involved allegations of prior explicit assurance from MSHA that the cited areas
were adequately guarded. For decisions vacating a guarding violation due to
inadequate notice, see Blue Mountain Production Co., 32 FMSHRC 1464
(Oct. 2010) (ALJ); Sangravl Company, Inc., 30 FMSHRC 1111 (Nov.
2008) (ALJ); Weirich Brothers Inc., 28 FMSHRC 66 (Feb. 2006) (ALJ); and Higman
Sand & Gravel, Inc., 24 FMSHRC 87 (Jan. 2002) (ALJ).

[17]
In a
series of emails following the hearing, representatives for the Secretary and
Northshore informed the court that Citation No. 8672118 had settled at the hearing
but that the settlement was missing from the transcript. The parties
articulated the settlement terms for the citation in those emails, and the
court accepted those terms into the record.

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On this page

Decision type

ALJ decision

Dockets

LAKE 2013-458-M, LAKE 2013-596-M, LAKE 2013-674-M

Decided

February 26, 2015

Presiding judge

David F. Barbour

Outcome

Mixed result

Precedential status

Final order, not precedent

Cited standards

30 C.F.R. § 56.2 30 C.F.R. § 56.11001 30 C.F.R. § 56.11016 30 C.F.R. § 56.12004 30 C.F.R. § 56.12008 30 C.F.R. § 56.12018 30 C.F.R. § 56.12030 30 C.F.R. § 56.12032 30 C.F.R. § 56.14100(b) 30 C.F.R. § 56.14107(a) 30 C.F.R. § 56.14107(b) 30 C.F.R. § 56.18002 30 C.F.R. § 56.20003(a) 30 C.F.R. § 56.20003(b) 30 C.F.R. § 100.3(d) 30 U.S.C. § 814(a) 30 U.S.C. § 814(d) 30 U.S.C. § 815(d) 30 U.S.C. § 820(i)

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