Secretary of Labor v. Northern Aggregate, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA litigated 13 citations and orders from Northern Aggregate's portable crusher and two processing plants, involving flying rock, compressed-gas storage, platforms, guards, electrical cables and grounding, equipment defects, brakes, and warning horns. Judge Priscilla M. Rae upheld seven violations, modified four, and vacated two. The most serious ruling affirmed an S&S, high-negligence, unwarrantable-failure citation because a cone crusher continued ejecting large rocks into a traveled area after repeated citations and a specific warning to install barriers. Other rulings turned on whether the Secretary proved exposure, timely correction, the adequacy of physical guarding, and the seriousness and negligence supported by each condition. The judge rejected the Secretary's request to double several penalties based on violation history and independently assessed a total of $19,070.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11027, 56.12004, 56.12025, 56.12028, 56.14100(b), 56.14101(a)(2), 56.14110, 56.14132(a), 56.16006, and 56.20011
• Outcome: Seven violations were upheld, four were modified, two were vacated, and total penalties of $19,070 were assessed.
• Key point: Repeatedly operating a crusher that ejects rock without barriers or warnings supports unwarrantable failure, while each additional equipment citation still requires evidence of the cited hazard and duty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

March 13, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

NORTHERN
AGGREGATE, INC.,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket
No. LAKE 2014-110-M

A.C.
No. 21-02623-335857-01

Docket
No. LAKE 2014-111-M

A.C.
No. 21-02623-335857-02

Mine:
Portable Crusher

Docket
No. LAKE 2014-180-M

A.C.
No. 21-03781-338680

Docket
No. LAKE 2014-217-M

A.C.
No. 21-03781-341073

Mine:
Plant 5

Docket
No. LAKE 2014-183-M

A.C.
No. 21-03527-338678

Docket
No. LAKE 2014-216-M

A.C.
No. 21-03527-341072

Docket
No. LAKE 2014-430-M

A.C.
No. 21-03527-347702

Mine:
Plant 3

DECISION AND
ORDER

Appearances:               Michele
A. Horn, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, CO,
for the Petitioner

Benjamin
Wangberg, Esq., Jones, Fuller, Wallner, Cayko, Pederson & Huseby, Ltd.,
Bemidji, MN, for the Respondent

Before:                        Judge
Rae

I.                  
STATEMENT OF THE CASE

This case is before me upon seven petitions
for assessment of civil penalties filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (“the
Mine Act”), 30 U.S.C. § 815(d).

The above-captioned dockets were
consolidated for hearing. Violation 8740833, which was the sole violation at
issue in consolidated docket LAKE 2014-182, was settled prior to hearing. The
following violations were also settled prior to hearing: Violations 8740831,
8740832, and 8740834 contained in docket LAKE 2014-111; Violations 8740697,
8740700, 8740702, 8740703, and 98740706 contained in docket LAKE 2014-183; and Violation
8740707 contained in docket LAKE 2014-180. My order approving settlement of
these violations is dated October 7, 2014. Thirteen violations contained in the
seven consolidated dockets remained for hearing.

A hearing was held in Carlton, Minnesota
on October 21-22, 2014, at which time testimony was taken and documentary
evidence was submitted. The parties also filed post-hearing briefs. I have
reviewed all of the evidence at length and have cited to the testimony,
exhibits and arguments I found critical to my analysis and ruling herein
without including a summary of testimony given by each witness. Based upon the
entire record and my observations of the demeanor of the witnesses, I uphold
Violations 8672802, 8740705, 8740698, 8740699, 8740701, 8740827, and 8740836,
modify Violations 8740695, 8740828, 8740829, and 8740835, and vacate Violations
8740696 and 8740830 for the reasons set forth below.

II.               
BACKGROUND

The parties have stipulated to the
following facts:

1.     
Northern
Aggregate, Inc. (“Northern Aggregate” or “Northern”) at all times relevant to
these proceedings engaged in mining activities and operations at Plant 3 and
the Portable Crusher in Beltrami County, Minnesota and at Plant 5 in Hubbard
County, Minnesota.

2.     
Northern
Aggregate’s mining operations affect interstate commerce.

3.     
Northern
Aggregate is subject to the jurisdiction of the Mine Act.

4.     
Northern
Aggregate is an “operator” as defined in section 3(d) of the Mine Act, 30
U.S.C. § 803(d), at the mines where the contested citations in these
proceedings were issued.

5.     
The
Administrative Law Judge has jurisdiction over these proceedings pursuant to
section 105 of the Mine Act.

6.     
Stephen
Dale Cotie, Wilbert Wayne Koskiniemi, and Thaddeus J. Sichmeller were at the
time the citations were issued authorized representatives of the United States
of America’s Secretary of Labor, assigned to MSHA, and were acting in their
official capacity when issuing the citations at issue in these proceedings.

7.     
The
certified copy of the MSHA Assessed Violations History reflects the history of
the citation issuances at the mines for 15 months prior to the date of the
citations at issue and may be admitted into evidence without objection by
Northern Aggregate.

Joint
Exhibit 1; Tr. 12.[1]

Northern Aggregate operates portable
sand and gravel mines owned by Rick Schulke and his two sons Eric and Kyle. Tr.
13, 425. Northern Aggregate uses two portable crushing plants which change
operational locations and close during the winter months, typically from
December through March. Tr. 13-15, 283. They employ cone crushers, which rotate
and funnel large rocks down against the walls of the cone exerting pressure on
the rocks thereby breaking them into small marketable sizes. Tr. 19, 378-79. The
violations charged in these dockets arose out of inspections conducted in September
and October 2013 by MSHA Inspectors Stephen Dale Cotie, Wilbert Koskiniemi, and
Thaddeus J. Sichmeller.[2]

III.            
LEGAL PRINCIPLES

A.    Gravity/Significant
& Substantial (S&S) Designation

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 Mathies Coal Company, the
Commission set forth the following four-part test to determine whether a
violation is properly designated S&S:

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.

6
FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861
F.2d 99, 103 (5th Cir. 1988); Consolidation Coal Co. v. FMSHRC, 824 F.2d
1071, 1075 (D.C. Cir. 1987). The inspector’s judgment is also an important
element of an S&S determination. Wolf Run Mining Co., 36 FMSHRC
1951, 1959 (Aug. 2014); Mathies, 6 FMSHRC at 5. The S&S
determination must be based on the particular facts surrounding the violation
at issue. Peabody Coal Co., 17 FMSHRC 508, 511-12 (Apr. 1995); see,
e.g., Wolf Run, 36 FMSHRC at 1957-59 (remanding S&S finding for
further consideration of relevant circumstances).   

It is the third element of the S&S
criteria that is the source of most controversies regarding S&S findings. This
element is established only if the Secretary proves “a reasonable likelihood
the hazard contributed to will result in an event in which there is an
injury.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). Evaluation
of the reasonable likelihood of injury should be made assuming “continued
normal mining operations,” U.S. Steel Mining Co.,
6
FMSHRC 1573, 1574 (July 1984), i.e., the evaluation should be made “in
consideration of the length of time that the violative condition existed prior
to the citation and the time it would have existed if normal mining operations
had continued.” Black
Beauty Coal Co.,
34 FMSHRC 1733, 1740 (Aug. 2012); Rushton Mining Co., 11 FMSHRC 1432,
1435 (Aug. 1989).

The S&S nature of a violation and
the gravity of the violation are not synonymous. Gravity, generally expressed
as the degree of seriousness, is an element that must be assessed for every
violation, while an S&S determination is made only in the context of
enhanced enforcement under section 104(d) of the Mine Act. The gravity
assessment and a finding of S&S are frequently based upon the same or
similar factual circumstances, Quinland Coals, Inc., 9 FMSHRC 1614, 1622
n.11 (Sept. 1987), but the focus of the inquiries differs. The
Commission has pointed out that the focus of the gravity inquiry “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.” Consolidation
Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996); see also Harlan Cumberland
Coal Co., 12 FMSHRC 134, 140-41 (Jan. 1990) (ALJ) (explaining that
notwithstanding likelihood of injury, some violations are serious in the
context of the standard violated and the Mine Act’s deterrent purposes – for
example, violations of an important safety standard; violations demonstrating
recidivism or defiance on the operator’s part; or violations that can combine
with other conditions to set the stage for disaster).

B.    
Negligence/Unwarrantable Failure

Negligence is conduct that falls below
the standard of care established under the Mine Act. Under the Mine Act, an
operator is held to a high standard of care and is required to be on the alert
for conditions and practices that may cause injuries and to take necessary
precautions to prevent or correct them. 30 C.F.R. § 10.0(d). High negligence is
defined as having occurred in connection with a violation when “[t]he operator
knew or should have known of the violative condition or practice, and there
were no mitigating circumstances.” Id. § 100.3, Table X.

More
serious consequences can be imposed under the Mine Act for violations that
result from the operator’s unwarrantable failure to comply with mandatory
health or safety standards. The unwarrantable failure terminology is taken from
section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious
conduct by an operator in connection with a violation. The Commission has
determined that unwarrantable failure is aggravated conduct constituting more
than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001-04
(Dec. 1987). Unwarrantable failure is characterized by such conduct as
“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious
lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991); Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995).

Whether conduct
is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any
aggravating factors or mitigating circumstances exist. These factors often
include (1) the extent of the violative condition, (2) the length of time the
violative condition existed, (3) whether the violation posed a high degree of
danger, (4) whether the violation was obvious, (5) the operator’s knowledge of
the existence of the violation, (6) the operator’s efforts in abating the
violative condition, and (7) whether the operator had been placed on notice
that greater efforts were necessary for compliance. Wolf Run Mining Co.,
35 FMSHRC 3512, 3520 (Dec. 2013); see Lopke Quarries, Inc., 23 FMSHRC
705, 711 (July 2011). Because supervisors are held to a high standard of care,
another important factor supporting an unwarrantable failure determination is
the involvement of a supervisor in the violation. Lopke Quarries, 23
FMSHRC at 711.

The factors
listed above must be viewed in the context of the factual circumstances of a
particular violation, and it is not necessary to find that all factors are
relevant or deserving of equal weight in order to determine that the violation
is unwarrantable. Wolf Run, 35 FMSHRC at 3520-21; E. Associated Coal
Corp., 32 FMSHRC 1189, 1193 (Oct. 2010); IO Coal Co., 31 FMSHRC
1346, 1351 (Dec. 2009). However, all factors that are relevant should be
considered. San Juan Coal Co., 29 FMSHRC 125, 129 (Mar. 2007).

C.    
Acceptable
Means of Service of Violations

Northern argues
that all thirteen of the violations at issue here should be vacated because the
Secretary has failed to present proof they were actually served upon the
operator. Resp.’s Br. at 1. Northern also contends that because the Secretary
did not serve violations properly, the operator lacked knowledge of prior
violation 8672801 contained in Exhibit S-5g, which was the basis for the
Secretary’s unwarrantable failure designation for Citation Number 8740698. Id.
at 10-11; Ex. S-5.

Of the thirteen
violations at issue in this docket, twelve were personally served on the
operator at the time of issuance: Inspector Sichmeller personally served
violations 8740827, 8740828, 8740829, 8740830, 8740835, and 8740836 to Foreman
Alan Speck during the September 4, 2013 inspection of the Portable Crusher, and
Inspector Koskiniemi personally served violations 8740705, 8740695, 8740696,
8740698, 8740699, and 8740701 to Eric Schulke during the October 31, 2013
inspection of Plant 3 and Plant 5. Tr. 105-07, 224-25. Northern’s witnesses
confirmed it is typical for MSHA inspectors to discuss violations with a
company representative during the inspection and provide a copy of the
violation on the spot. Tr. 279, 374-75, 424. This constitutes adequate service.

The remaining
violation at issue in this docket, Citation Number 8672802, was issued verbally
by Inspector Cotie at Plant 5 on October 22, 2013 and a hard copy was later sent
by certified mail to Northern’s address of record on file with MSHA. Tr. 29,

33. The prior violation that the operator denies knowing about, Citation Number
    8672801, was issued in the same manner by Cotie on September 12, 2013. Tr.
    42-43. The inspector’s testimony that the citations were mailed to Northern’s
    address of record is credible and I find that they were in fact mailed. This is
    adequate service under the Mine Act. Section 104(a) of the Mine Act does not
    require personal service of violations. 30 U.S.C. § 814(a). Section 109 specifies
    only that violations “shall be delivered” to the mine office and requires
    operators to maintain an up-to-date address on file with MSHA for this purpose.
    Id. § 819; see also 30 C.F.R. Part 41 (placing burden on mine
    operator to ensure address is correct). The MSHA Citation and Order Writing
    Handbook does not mandate that the operator be given a written violation at the
    time it is observed but requires the inspector to tell the operator about the
    violation and discuss the circumstances. Citation & Order Writing
    Handbook, Ch. 7 § II, available at http://www. msha.gov/READROOM/HANDBOOK/PH13-I-1.pdf.
    Consistent with these guidelines, Cotie discussed each citation with a company
    representative during the inspection before mailing the written copies to the
    office. Tr. 29, 42. Cotie’s actions were appropriate and sufficient to effect
    service and notice.

IV.            
 FINDINGS OF FACT AND ANALYSIS

1.      Citation No.
8672802/Docket No. LAKE 2014-217[3]

This section 104(d)(1) citation was
issued on October 22, 2013 by Inspector Cotie at Plant 5 and alleged a
violation of 30 C.F.R. § 56.20011. This mandatory standard requires that “[a]reas
where health or safety hazards exist that are not immediately obvious to
employees shall be barricaded, or warning signs shall be posted at all
approaches.” Signs are required to be visible, legible, and display the type of
hazard present and any necessary protective action required. 30 C.F.R. §
56.20011.

The citation is predicated upon Cotie’s
observation of rocks being ejected into the workplace from the Norberg cone
crusher absent the appropriate warning signs or barricades, which had been
removed from all approaches. Ex. S-1; see Ex. S-1a; Photographs S-1b, c,
d. The citation documents that the operator had been informed of the hazard on
a previous occasion but had continued to conduct business without properly
correcting the situation. Ex. S-1.

Cotie evaluated the violation as S&S
with high negligence, highly likely to cause a permanently disabling injury
affecting one person, and an unwarrantable failure. Ex. S-1. The Secretary has
proposed a penalty of $6,458.00.

Prior to the issuance of this citation,
Cotie had issued two other citations for the same hazardous condition. On
September 11, 2013, Cotie had issued Citation Number 6190795[4]
at Plant 5 when he observed rocks being ejected from the Norberg cone crusher. Ex.
S-1e; see Exs. S-1f, g. A barricade had been erected only on the north
side of the crusher. The rocks in the debris field were sufficiently large, in
Cotie’s opinion, to cause significant injuries to a miner entering the area
whether or not he was wearing hard hat. Tr. 19-21. Upon making this
observation, Cotie spoke with the operator about some options that would
eliminate the danger, such as erecting a screen above the crusher or, as a less
expensive option, using old conveyor belting material to act as a barrier. Tr.
21-24. Cotie returned 14 days later to check on the operator’s progress in
building the suggested barrier and extended the citation. Ex. S-1e. However, when
Cotie returned on November 25, 2013 to terminate the citation, the barrier had
not been constructed and the crusher had been moved from the mine site. Tr. 25;
Ex. S-1e.

On September 12, 2013 Cotie issued the
second prior violation, Citation Number 6190800,[5]
for rocks flying from a cone crusher at a different operation (Plant 3) at the
same pit. At this operation, Northern had erected a barricade on only one side
of the crusher. Mining operations were moved before the condition was rectified
and the citation was terminated on September 23, 2013 for this reason. However,
Cotie had discussed the violation with the lead man who was present when the
citation was issued; also, the citation states that the operator must comply
with the cited standard and the condition must be corrected prior to resuming
crushing activities, otherwise MSHA will consider continued activity to be
“aggravated conduct constituting more than ordinary negligence.” Ex. S-6g, h, i;
Tr. 35-38.

The
Violation

When Cotie returned to the mine on
October 22, 2013 on a follow-up inspection, he saw the crusher back in
operation. Tr. 27, 29. It was still ejecting rocks of significant size to distances
of up to 25 feet, but this time there were no barriers on any of the
approaches, no warning signs or berms, and the operator had not heeded MSHA’s
warning to remedy the situation before resuming operations. Tr. 27-28; Ex. S-1a.
In Cotie’s opinion, the situation had in fact deteriorated from the last time
he cited the crusher because now there was nothing at all restricting access to
the hazard zone and the crusher was in a more active part of the work site,
increasing the chances that miners would be exposed to flying rocks. Tr. 27-28.
Due to this increased danger and Northern’s failure to take any corrective
action since the September citations were issued, Cotie issued this enhanced
unwarrantable failure citation for failure to erect barricades and signage to
warn of a hazard that was not immediately obvious to miners. Ex. S-1; Tr. 30-31.

Northern argues that the hazardous condition
was immediately obvious and therefore does not fit within the meaning of the
standard at 30 C.F.R. § 56.20011. However, the condition did not become obvious
until a miner was close enough to be struck by the ejecting rocks. Depending
upon which direction a miner approached, his view of the danger could be
blocked by equipment, the crusher, or other objects in the area until it was
too late. Also, the crusher was not necessarily ejecting rocks constantly. There
were likely lulls in which a miner could approach and be very close to the
crusher before it spewed rocks once again without barricades or signs warning
employees not to draw near.

I find this violation has been
established.

S&S/Gravity

The violation was assessed as S&S
because Northern’s failure to erect barricades or signage allowed unrestricted
access to the crusher, which was spewing rocks large enough to cause serious
head injuries to a miner whether or not he was wearing a hard hat and safety glasses.
Tr. 32. At the time the violation was observed, there were tire tracks in the
area as well as a small Bobcat in the trajectory path, showing that miners
accessed the area around the crusher where the rocks were being thrown. See Exs.
S-1b, S-1c.

The foregoing evidence establishes that
this violation of a mandatory safety standard contributed to the discrete
safety hazard that a miner would be struck in the head or other parts of the
body by flying rock. Northern’s failure to take any remedial action before
putting the crusher back into production despite having been issued two prior
citations for the same hazard shows that the hazardous condition would have
continued to exist under continued normal mining operations. This, along with
the Bobcat, tire tracks, and other evidence that miners routinely accessed the
debris field, is sufficient to establish a reasonable likelihood that the
hazard contributed to by this violation would result in injury if normal mining
operations were to continue. Due to the size and weight of the rocks, any
injury resulting from this violation would be very serious, if not fatal, in
nature. This violation is properly assessed as S&S.

The gravity of this violation is very
serious in that it exposed any miner within a substantially large radius of the
ejecting rock to a potentially fatal injury.

Negligence/Unwarrantable
Failure

Inspector
Cotie testified he issued this citation as an enhanced 104(d)(1) citation (i.e.,
an unwarrantable failure to comply with a safety standard) because he had spent
time discussing the situation with management in the past and believed the
operator was aware of the hazard but had taken no action to address it. Tr.
30-31.

Operator’s
Knowledge of Existence of Violation

The
operator knew that this violation existed long before the citation was issued. Inspector
Cotie had issued two citations six weeks earlier on September 11 and 12, 2013
for the same hazard – rocks being ejected from cone crushers at the pit without
safety barriers. Exs. S-1e, S-6g. Cotie had discussed the situation at length
in person with company representatives. Tr. 21-24, 37-38. Eric Schulke, the
overseer of the pit, was personally aware of the situation. See Tr. 373-74,
384-87, 403-13.

Operator’s
Notice that Greater Efforts at Compliance Were Necessary

The
two prior citations and the discussions with Cotie sent a clear message to
Northern that it needed to address the hazard identified in the citations,
thereby placing Northern on notice that greater efforts at compliance with the
Mine Act were necessary. After Northern moved its operations without addressing
the hazard, it was notified by MSHA on September 23, 2013 that failure to
correct the hazard before resuming mining activities would be considered aggravated
conduct constituting more than ordinary negligence. See Ex. S-6g. This
specific warning from MSHA provided the operator with further notice of the
need for greater compliance efforts.

Operator’s
Abatement Efforts

The abatement effort factor measures an
operator’s response to violative conditions that it knew or should have known
about before the citation was issued. Enlow Fork Mining Co., 19 FMSHRC
5, 17 (Jan. 1997). Both the abatement efforts undertaken, and the level of
priority the operator has placed on abating conditions for which it received
notice that greater compliance efforts were necessary, should be considered. IO
Coal Co., 31 FMSHRC 1346, 1356 (Dec. 2009). It must then be determined
whether the operator’s efforts “were taken with sufficient care under the
circumstances, even if ultimately unsuccessful in completely preventing a
violative condition.” Windsor Coal Co., 21 FMSHRC 997, 1005 n.9 (Sept.
1999).

Cotie’s conversations with the operator
about the two prior citations had included discussion of various options for
addressing the hazard. Tr. 22-23, 385, 406. Yet despite the two prior
citations, the pointed conversations with Cotie, and the warning that failure
to correct the hazard before resuming mining activities would result in
enhanced penalties, the Plant 5 crusher was operational once again on October
22, 2013 without any corrective action having been taken. In fact, the berm
that had been erected on the north side of the crusher was no longer present,
leaving no barriers to prevent access to the debris field around the crusher. Tr.
27-28. The situation had deteriorated. I find that Northern’s failure to take
any abatement action despite full knowledge of the need to do so is a
significant aggravating factor in this case.

Extensiveness of
Violation & Degree of Danger Posed

The degree of danger posed by Northern’s
failure to prevent access to the area around the crusher was very high. Rocks
the size of cantaloupes were being flung from the crusher up to 25 feet outward
into an area trafficked by miners on foot and in small equipment such as the
Bobcat seen in the photograph in Exhibit S-1b. This placed miners at risk of
serious, if not fatal, injuries.

This condition was extensive in that its
scope and magnitude, including the size of the rocks and the large area
affected, put any miner within a 25-foot radius of the crusher in danger of
potentially fatal injuries.

Obviousness
& Duration of Violation

The violative condition, while not
immediately obvious to all miners, was obvious to management. The inspector’s
photographs depict an unmistakable debris field that extends into areas
traversed by miners, clearly indicating the presence of a hazardous condition. See
Exs. S-1b, S-1c, S-1d.

This condition had existed at least
since the previous citation was issued at Plant 5 on September 11, 2013. Most
likely the condition dated back to April 2013 when Northern’s season had begun,
as the mine’s entire purpose is to crush rock for sale and there is no reason
to believe Northern’s mode of operating had changed since the season started. I
find this condition was of substantial duration and was patently obvious.

Conclusions

The factors discussed above establish
unwarrantable failure, particularly the operator’s knowledge of the violation;
the fact that the operator was on notice of the need for greater compliance
efforts; the high degree of danger posed by the violation; and the operator’s
failure to abate the condition despite the foregoing three factors. Eric
Schulke admitted that after having received two prior citations for the same
hazardous condition, he chose to simply continue operating the crusher without
fixing the problem. Tr. 409-10. This shows a disregard for safety amounting to
more than ordinary negligence. I find that this violation was an unwarrantable
failure to comply with a mandatory safety standard.

High negligence is appropriate because
the operator knew of this violation and there are no mitigating circumstances.

2.      Citation No. 8740705/Docket
No. LAKE 2014-180

This 104(a) citation was issued by
Inspector Koskiniemi on October 31, 2013 at Plant 5 for a violation of 30
C.F.R. § 56.16006, which requires that “[v]alves on compressed gas cylinders
shall be protected by covers when being transported or stored, and by a safe
location when the cylinders are in use.” The narrative portion of this citation
indicates that Inspector Koskiniemi found oxygen and acetylene cylinders by the
control trailer with regulators, torch heads, and hoses attached without the
protective caps on the valves. Ex. S-2; see Photographs S-2b. He did not
know when the cylinders had last been used, but he determined they were not in
use at the time he saw them because the hoses were coiled and the torch head
was resting on the regulator. Tr. 114-15. He assessed the violation as
non-S&S and unlikely to cause an injury, with low negligence and potential
to cause a fatal injury affecting one person. Ex. S-2. The Secretary seeks a
penalty of $176.00.

The
Violation

The cylinders were secured to a stable
cart on a platform where there was little likelihood they would be hit and
damaged, and the company representative told Koskiniemi he had merely forgotten
to put the caps on the valves. Tr. 69-70, 112-15; Ex. S-2a. Koskiniemi’s
concern was that the valves could be broken off the cylinders while they were
being stored without the protective caps on them. The cylinders, which held
pressurized gas, would then become projectiles that exposed any miner within their
path to a fatal injury. The pressure behind a launched cylinder, in Koskiniemi’s
opinion, would be sufficiently forceful to penetrate a brick wall. Tr. 68-69.

Northern’s position is that the valves
did not need to be capped because the cylinders were not being stored, as they
were being used intermittently throughout the day of the inspection. Resp.’s
Br. at 4-5; Tr. 399-403, 418-20. In FMC Corporation, the Commission
discussed the meaning of the term “storage” within the context of a safety
standard that regulated storage of blasting agents and found that the term was
sufficiently broad to include both short-term and long-term storage. 6 FMSHRC
1566 (July 1984). Several ALJ cases since then have relied on FMC
Corporation to conclude that compressed gas cylinders were being
temporarily stored within the meaning of § 56.16006 under various circumstances.
See Woodring Co., 16 FMSHRC 1716 (Aug. 1994) (ALJ) (finding that
cylinders were stored, not in use, when operator had used them briefly earlier
in the day then placed them in truck with no indication of immediate need or
intention to reuse them); Martin Marietta Aggregates, 11 FMSHRC 633
(Apr. 1989) (ALJ) (finding that cylinders were “temporarily stored,” despite
being readily available for use with gauges and hoses attached, because there
was no evidence suggesting when they were last used or would next be used); Phelps
Dodge Corp., 6 FMSHRC 1930, 1937 (Aug. 1984) (ALJ) (finding that cylinders
were being stored temporarily or semi-permanently when evidence suggested they
had been left in a walkway without being used since at least the prior shift).

I find that the cylinders were being
stored and were not in use at the time of the inspection. Because the valves
were not capped, a violation of § 56.16006 occurred.

Gravity
& Negligence

Low negligence is appropriate here, as
there are sufficient mitigating circumstances: the tanks were secured to a
stable cart, they were in an out-of-the-way location where there was little
likelihood they would be hit or damaged, and the company representative stated
that he had simply forgotten to put the caps on.

This violation is non-S&S and the
gravity is low in that an injury was unlikely to occur because the tanks were
unlikely to be hit or damaged.

3.      Citation No.
8740695/Docket No. LAKE 2014-183

This 104(a) citation written by Inspector
Koskiniemi on October 31, 2013 at Plant 3 charges a violation of 30 C.F.R. § 56.11027.
The cited mandatory standard requires, in relevant part, that working platforms
“be of substantial construction and provided with handrails and maintained in
good condition.” The citation alleges that the railing on an elevated work platform
above the jaw crusher had come out of its pocket. This allowed the railing to
swing open, creating a 16-inch gap directly over the jaw crusher hopper into
which a miner could fall and suffer a fatal injury. Ex. S-3; Tr. 72; see Ex.
S-3b. Koskiniemi assessed the violation as S&S, reasonably likely to result
in a fatal injury to one miner, and the result of low negligence. Ex. S-3. The
Secretary proposes a penalty of $117.00.

The
Violation

The platform above the jaw crusher is
about ten feet off the ground. Ex. S-3a. Miners access the platform to observe
the crusher, check clogs, and perform routine maintenance on the crusher. Tr.
73-74. The jaw crusher’s function is to take the large rocks as they are dug
out of the pit and break them down into sizes that can be further broken down
by the cone crushers. Tr. 72. It was the inspector’s opinion that the vibration
attendant to the operation of the crusher caused the railing on the crusher’s
top work platform to pop out of place. Tr. 73, 116.

The operator established on cross-examination
that the platform was of substantial construction and that the railing had been
in place at the time the required shift examination had been performed. Tr. 116-17.
The railing is removable and no one was on the platform at the time of the
inspection. Tr. 117-18, 395-96, 416. However, § 56.11027 is a strict liability
standard, and the duty to maintain working platforms includes keeping the
railings “popped into” the pockets to ensure the platform can be used safely. See
Ames Constr., Inc., 33 FMSHRC 1607, 1611 (July 2011) (noting Mine Act
imposes liability for violation of mandatory health and safety standards
“without regard to fault”), aff’d, 676 F.3d 1109 (D.C. Cir. 2012). The
platform was available for use at the time it was cited and it provided access
to work areas. I find that a violation occurred.

S&S/Gravity

The inspector testified he assessed this
violation as S&S because miners were required to access the platform to
perform maintenance of the jaw crusher and other duties. He also stated he was
aware of prior fatalities from miners falling into jaw crushers. Tr. 73-74.

A violation of a mandatory safety
standard occurred in that the handrail was not in place, satisfying the first Mathies
element. Miners were required to access the platform for maintenance and
other tasks, which could have exposed them to a fall hazard when the handrail
was in the condition the inspector observed. Thus, this violation contributed
to the discrete safety hazard of a miner falling from the platform, satisfying
the second Mathies element.

However, the Secretary has not
established a reasonable likelihood the hazard contributed to would have resulted
in injury even assuming continued normal mining operations. The handrail had
been in place when the platform was last examined and could have popped out at
any time due to the normal vibration and shaking of the crusher. Tr. 73, 116-20.
It was not physically damaged. Its condition was patently obvious and easily
fixed. There is no evidence anyone accessed the platform while the railing was
out of place, and plant operator Eric Schulke credibly testified that this
condition would have been fixed immediately as soon as it was noticed. Tr. 396.
Thus, no miners were exposed to the hazard while it existed, and if normal
mining operations had continued there is no evidence to suggest that the
operator would not have shut down the crusher and safely put the railing back
into place before the platform was accessed for any purpose that would have exposed
a miner to danger. For this reason, I find this violation was not S&S.

I accept the inspector’s testimony that
falling onto the jaw crusher could cause a fatal injury. Even if the jaw
crusher were not operational, a fall from the platform’s 10-foot elevation onto
equipment or the ground could cause a serious or fatal injury. I find the gravity
of this violation to be reasonably serious in that it could have resulted in a
fatal injury to a miner.

Negligence

This violation was properly assessed as
low negligence as there is no evidence to establish that the operator knew of
the violative condition before Koskiniemi discovered it and it had existed for
a short period of time.

4.     
Citation No. 8740696/Docket No. LAKE 2014-183

Inspector Koskiniemi issued this 104(a)
citation on October 31, 2013 at Plant 3 for a violation of 30 C.F.R. §
56.12004. The cited mandatory standard requires in relevant part that
electrical conductors exposed to mechanical damage be protected. The narrative
section of the citation states:

The energized
480 volt cable for the Pioneer jaw crusher was pulled out of the fitting under
the electrical panel on the west side of the JCI dual screener. About 1-1 ½
inches of the inner conductors were exposed to mechanical damage. The
insulating covers on the inner conductors appeared to be in good condition. This
condition exposes persons to shock/burn hazards of 480 volts with resulting
injuries.

Ex.
S-4. The violation was assessed as non-S&S, unlikely to result in injury,
with low negligence and potential to cause a fatal injury. Ex. S-4. The
Secretary seeks a penalty of $100.00.

The inspector was told that the cited
cable energizes the jaw crusher. Tr. 76-77. As depicted in Ex. S-4b, the outer
insulating cable had pulled down and out of the fitting at the bottom of the electrical
panel, leaving the inner conductors exposed to the elements and potentially to mechanical
damage. Tr. 77. The individual inner cables each have insulating jackets, which
were undamaged. Tr. 78, 124, 336. The area where the exposed portion of the cable
was located is rarely if ever accessed and the condition was not easily seen,
forming the basis of the inspector’s non-S&S and low negligence assessments.
Tr. 78-79, 121-23.

While the Secretary established that the
inner conductors were exposed, there is no evidence the exposed portion of the
cable was subject to mechanical damage, as the exposed part was not in contact
with other equipment and was located below the electrical panel in an area that
was not accessed by miners or exposed to the weather. The violation is VACATED.

5.     
 Citation
No. 8740698/Docket No. LAKE 2014-430

This section 104(d)(1) citation was
written on October 31, 2013 by Inspector Koskiniemi for another violation of 30
C.F.R. § 56.11027 at Plant 3. The lengthy Condition or Practice section of the
citation reads:

The railings on
the elevated work platform on the south end of the JCI dual screener 6203 were
broken in numerous places creating a fall hazard of about 6-7 feet to the
ground or 3-4 feet onto the tail end of a transfer conveyor with resulting
injuries. All four of the railing uprights on the south end were broken at the
base, one upright on the west side was broken at the base, two uprights on the
east railing was broken on the south end so that it would give way under pressure.
The condition was cited two times prior to this. The last citation, #8672801,
was terminated due to moving and the operator was informed that they were
required to repair the railings prior to working at another mine site. The
operator has engaged in aggravated conduct constituting more than ordinary
negligence. This violation is an unwarrantable failure to comply with a
mandatory standard.

Ex.
S-5.

This violation was assessed as
reasonably likely to result in a fatal accident affecting one miner, S&S,
and the result of high negligence in addition to the unwarrantable failure
designation. Ex. S-5. The Secretary proposes a civil penalty in the amount of
$2,700.00.

About six weeks earlier on September 12,
2013, Inspector Cotie had cited the same screener platform for a violation of
the same safety standard. Ex. S-5g (Citation No. 8672801).[6]
The function of the screener is to shake materials back and forth to separate
them by size. Tr. 39. Cotie testified that miners need to access the elevated
work platform at the end of the screener to perform maintenance activities and
remove materials such as large rocks from the screen. Tr. 41-42, 47. He cited
the screener platform for a violation because five of the seven upright
supports for the platform’s handrail were broken and the remaining two were
severely damaged to the point that he doubted they could support a person’s
weight, creating a fall hazard for miners accessing the elevated platform. Tr.
38-41; Exs. S-5g, S-5h, S-5i. Cotie testified he discussed the violation with
the lead man who was running the screener and mailed a hard copy of the
citation paperwork to Northern’s office by certified mail. Tr. 42-43.

The
Violation

On October 31, 2013, Inspector
Koskiniemi again observed that numerous vertical uprights to the railing on the
dual screener platform were broken, substantially compromising the integrity of
the railing. Tr. 80. He was aware that Cotie had issued a citation for several
of the same uprights being broken about six weeks earlier. Tr. 81-82. He
identified in photographs S-5c, S-5d, and S-5e the specific parts of the
damaged railing that Cotie had cited in September that were still damaged on
October 31, 2013. Tr. 83-84. The Secretary presented Exhibits S-5g, S-5h, and
S-5i from the September 12, 2013 inspection conducted by Cotie. Exhibit S-5g is
Cotie’s written citation, which states that the operator had been cited during
the previous inspection (in September 2012) for the same violation, and the
condition had deteriorated since then. Cotie terminated the citation on
September 23, 2013 because Northern had moved its mining operations to a
different location without correcting the cited condition. Ex. S-5g; Tr. 60-61.
The citation contains a warning that the operator must comply with the cited
standard before resuming activities at another mine, and failure to do so will
be considered aggravated conduct constituting more than ordinary negligence. Ex.
S-5g. Exhibit S-5i contains various photographs of the damaged railing as it
existed on September 12, 2013. It is apparent from the photographs that the
damage cited by Cotie corresponds with the damage cited by Koskiniemi on
October 31, 2013, depicted in Exhibits S-5c through S-5e.

Koskiniemi said the cited platform was
located above a transfer conveyor that was fed by a hopper that in turn was fed
by the output conveyer exiting the screener. Tr. 85; Photograph Ex. S-5f. The
platform was six or seven feet above the ground. Tr. 85; Ex. S-5. Koskiniemi
described the breaks on the railing as rusted, indicating they were not fresh. Tr.
130, 154. The inspector stated that Eric Schulke was agitated when confronted
with this violation but did not deny that he knew of the condition. Tr. 88-90,
127, 129. Schulke testified that he was unaware
of the prior citation and was not aware of the poor condition of the railing. Tr.
414-15. However, Foreman Sam Goeden, who accompanied Koskiniemi during the
October 31 inspection,[7]
acknowledged that the railing supports had been broken for some time. Tr.
129-30.

I find the evidence supports a violation
of the mandatory standard.

S&S

Because miners performed maintenance on this
platform elevated six or seven feet above the ground and above moving conveyors
and tail pulleys, the broken railings exposed them to a potentially fatal fall.
Tr. 86-87. The inspector had personal knowledge of a fall from a lesser height
resulting in a fatality. Tr. 87, 132. For these reasons, he determined the
condition was S&S and reasonably likely to cause a fatal injury.

Northern argues that this violation is
not S&S for the same reasons Citation Number 8740695 was not S&S,
specifically in that the platform was not frequently accessed and would not be
prior to being repaired. I find a significant distinction between the two
violations, however.  In the prior situation, a railing had popped out of its
pocket sometime after the previous examination had been done. The evidence
established that this could occur at any time from vibrations created by the
machinery. The railing needed no repair. Here, the welds had broken and the
rails were rusted and damaged. It is clear from Cotie’s citation and the
photographs taken by Koskiniemi that this condition had existed for a
significant period of time and required more substantial welding and repair
work to make safe. The operator failed to make these repairs despite being
warned of the repercussions and had no intentions of doing so, as evidenced by
the fact that they put the platform back in service without repairing it. Thus,
it is clear to me that in the course of continued normal operations it was
reasonably likely that this continuing violation contributed to a discrete safety
hazard that was reasonably likely to result in an injury-causing event. A miner
could lose his footing or lean against the railings, which would give way under
pressure, resulting in a fall either onto dangerous moving equipment or to the
ground below. Such a fall would be reasonably likely to result in very serious,
if not fatal, injuries. This violation is S&S.

The gravity of this violation is very
serious in that it exposed at least one miner to a fatal injury.

Negligence/Unwarrantable
Failure

Inspector Koskiniemi testified he
characterized this violation as a section 104(d)(1) unwarrantable failure with
high negligence because the mine owners were aware of the hazard and had been
cited for it a month and a half before but had not repaired it. Tr. 86.

Operator’s
Notice of Need for Greater Compliance Efforts

& Operator’s
Knowledge of Violative Condition

As discussed above, Cotie had issued prior
citation 8672801 for the same violative condition just six weeks earlier on
September 12, 2013. In fact, Cotie noted that the platform had been cited for
the same condition during the last inspection and the condition had since
worsened, giving rise to his subsequent warning to repair the railing before
resuming operations at any location. Exs. S-5g, S-5h. The two prior citations
and Cotie’s warning served to place Northern on notice that greater efforts at
compliance with the cited standard were necessary.  

Northern denies it had knowledge of the
prior citation issued by Cotie or the condition of the railing. Resp.’s Br. at
10-12; see Tr. 388-95, 413-15. However, Cotie credibly testified he had
discussed the violation with a company representative at the time he cited it
and Koskiniemi and Cotie both testified that the citation had been sent by
certified mail to Northern’s address on file with MSHA. Tr. 42-43, 126-27. As
discussed above, this was proper service.

Moreover, the breaks in the handrail
supports were old and rusted and the photographs clearly show these were the
same breaks observed by Cotie six weeks earlier. Tr. 130, 154; compare Exs.
S-5c, S-5d, S-5e with photos in Ex. S-5i. The damage was obvious
and had existed long enough that it should have been discovered during shift examinations.
Indeed, the foreman accompanying Koskiniemi during the October 31 inspection acknowledged
the damage had existed for a long time. Tr. 129-30. I conclude that the
operator knew of this violation.

Operator’s
Efforts in Abating the Violation

Northern was aware of the violation and
the need for greater compliance efforts due to the prior similar citations. Koskiniemi
had returned to the mine on October 31, 2013 because he had received a
commencement of operations filed by Northern indicating they had resumed
operations at this location. Tr. 128. Yet the violative condition persisted with
the operator’s full knowledge of the situation. Tr. 129-30. In fact, when Koskiniemi
issued the citation he was confronted by Eric Schulke, who accused Koskiniemi
of trying to put him out of business. Tr. 88. Schulke then informed the
inspector that he intended to fire up the plant in 30 minutes whether the
railings were repaired or not because he had production to meet. Tr. 89. When
he was told that a closure order would be issued in that event, he replied that
regardless of the closure order, he was not going to shut down production. Tr.
89-90. Eventually, he calmed down and repaired the railing. Tr. 90.

Schulke’s behavior evidences Northern’s
intentional failure to abate the hazardous condition. I find this to be a
significant aggravating factor.  

Obviousness, Extensiveness,
Dangerousness, and Duration of Violation

As
evidenced by the inspector’s photographs, this violation was obvious in that
the damage to the railing would have been easy to see during a shift
examination. See Tr. 145-46; Exs. S-5b to S-5e. The violation was extensive
in that the majority of the uprights supporting the handrail were broken all
the way through at the base, defeating the purpose of having a railing. See Ex.
S-5. This violation posed a high degree of danger because it placed miners at
risk of a potentially fatal fall from the elevated platform onto equipment or the
ground below if they leaned on the defective railing. The evidence suggests
that this dangerous violation had existed for a lengthy duration because it had
been cited during the two previous inspections and the fractured pieces of the
railing were rusted, showing that these clearly were not fresh breaks.

Conclusions

Based upon the two prior violations
issued for the same condition, the operator’s failure to abate the September 12,
2013 citation issued by Cotie, the further deterioration and extensive damage
to the railings, the obviousness of the violation, the operator’s knowledge of
the condition both when Cotie cited it and when Koskiniemi cited it again on
October 31, 2013, the length of time the condition had existed, the threat by Eric
Schulke to operate the plant without repairing the railing, and the extremely
dangerous hazard and serious result likely to occur therefrom, I find that the
operator exhibited an extreme and reckless, if not intentional, disregard for the
safety of its miners. This was an unwarrantable failure to comply with the
mandatory standard. The operator also displayed high negligence.

6.     
Order No. 8740699/Docket No. LAKE 2014-216

Issued on October 31, 2013 by Inspector
Koskiniemi, this section 104(d)(1) order alleges another incidence of rocks
being ejected from a Norberg cone crusher, this time at Plant 3, without
barricades, warning signs, or any devices that would provide protection against
flying rocks. The order alleges a violation of the mandatory standard at 30
C.F.R. § 56.14110, which states: “In areas where flying or falling materials
generated from the operation of screens, crusher, or conveyors present a
hazard, guards, shield, or other devices that provide protection against such
flying or falling materials shall be provided to protect persons.”

The order describes the affected area as
the main travelway between the crusher trailer and the control/generator
trailer, which is a location frequented by miners on foot. The violation is
written as an unwarrantable failure, referring back to Citation Number 6190800 (Ex.
S-6g), a 104(a) citation written by Cotie on September 12, 2013 for failure to
erect barricades at the Plant 3 crusher. It is also assessed as reasonably
likely to result in a fatal injury affecting one miner and S&S with high
negligence. Ex. S-6. The Secretary has proposed a penalty of $2,000.00.

The
Violation

Koskiniemi testified that as he was
walking towards one of the conveyors, he heard “a lot of noise, racketing,
shaking vibrating by the cone crusher.” Tr. 90. Apparently, a piece of steel
had fallen into the crusher, and as he approached the area, he suddenly noticed
dozens of rocks up to eight inches in size “strewn everywhere” and being
ejected from the crusher without warning. Tr. 91.  His photographs illustrate the
size and quantity of rocks being ejected from the crusher and the debris field.
See Exs. S-6b to S-6f. The rocks had fallen around the electrical panel,
which is accessed by miners in order to start up and shut off the equipment. Tr.
95; see Ex. S-6e. The stairway to the control trailer, which is
frequently accessed for storage purposes and to control the plant, was also within
the debris field. Tr. 99, 138.

Foreman Sam Goeden was operating the
crusher the day of the inspection. He made a comment to Koskiniemi about
walking into the area of the rock shower, at which point Koskiniemi told him
there should be some sort of warning or barricade. Tr. 91-92, 139-40. According
to the order documentation, Goeden was aware that Northern had previously been
cited for this hazard. Ex. S-6a.

The Respondent argues that although it
is impossible to entirely eliminate ejection of rocks from the cone crusher, there
were signs on the crusher itself warning of falling rocks and employees knew to
stay out of the area. Resp.’s Br. at 14-15. As Koskiniemi testified, however,
the signs on the crusher were not readily observable from all directions and
were not obvious enough to keep him out of the area. Tr. 136, 147; see Exs.
R-2, R-3. There were employees on-site and rocks were being ejected some 15 to
20 feet outward right up to the control trailer, the electrical panel, and
other regularly accessed sites. Ex. S-6a; Tr. 151-53. Section 56.14110 requires
protection from such flying or falling materials. The regulatory language is
much stronger than merely advising that employees must be aware of the danger:
the regulation requires actual protection against the danger by use of a guard,
shield, or other device. 30 C.F.R. § 56.14110. Barricades and warning signs at
the perimeter of the debris field would have accomplished this protection, but
were not provided. This violation has been established.  

S&S/Gravity

The violation was assessed as S&S
because the cone crusher was ejecting dozens of rocks large enough to cause
serious injuries 15 to 20 feet outward into a well-traveled area. Ex. S-6a; Tr.
91, 99. This contributed to the discrete safety hazard that miners would be
struck in the head or other parts of the body by flying rock.

Northern had been issued three prior
citations for this same hazard yet had failed to take any remedial action
before putting the Plant 3 cone crusher back into operation in an area that was
frequently accessed. Exs. S-1, S-1e, S-6g. This shows that the hazard would
have continued to exist if normal mining operations had continued. The
electrical panel that employees used to start and stop the equipment and the
stairway to the control trailer were both within the crusher’s debris field,
establishing a likelihood that miners would walk through the debris field
during normal mining operations. Tr. 95, 99; see Ex. S-6e. Because the debris
field was a frequently accessed area and the operator displayed no intent to
correct the hazard, I find that the hazard contributed to by this violation was
reasonably likely to result in injury during continued normal mining
operations.

The rocks being ejected from the cone
crusher were up to 8 inches in diameter. Ex. S-6a. Koskiniemi testified that hard
hats would have been insufficient to prevent serious injury in the event of
being struck by one of these large rocks. Tr. 99. I find that the evidence
establishes a reasonable likelihood that any injury caused by this violation
would be very serious, if not fatal.

This violation is S&S.

The gravity of this violation is very
serious in that it exposed any miner within a substantially large radius of the
cone crusher to a potentially fatal injury.

Negligence/Unwarrantable
Failure

Inspector
Koskiniemi testified he issued this order under section 104(d)(1) because the
operator had been cited previously for the same condition and was aware of the
hazard, yet once again he had observed rock strewn everywhere without the
operator taking any action to address the problem. Tr. 97-98.

Operator’s
Knowledge of Existence of Violation

The
operator knew of this violation. Inspector Cotie had previously issued citations
to the operator on September 11, September 12, and October 22, 2013 for the
same hazard. Exs. S-1e (Citation No. 6190795), S-6g (Citation No. 6190800); S-1
(Citation No. 8672802). Cotie had discussed each of the prior citations with
company representatives at the time of issuance. Tr. 21-24, 37-38, 54-56. Eric
Schulke, the overseer of the pit, was personally aware that ejection of rocks
from the cone crushers was a problem. See Tr. 373-74, 384-87, 403-13. The
plant operator, Sam Goeden, was also aware of the problem. Ex. S-6a.

Operator’s
Notice that Greater Efforts at Compliance Were Necessary

The
three prior similar citations and Cotie’s discussions with company
representatives placed Northern on notice that greater efforts at compliance were
necessary. The most recent prior similar citation, Citation Number 8672802, had
been issued just a week earlier and assessed as a 104(d)(1) unwarrantable
failure to comply with a mandatory safety standard. Ex. S-1. Although that
citation had been issued under a different mandatory standard, the hazard was
the same, and the unwarrantable failure designation should have served as a
strong warning to the operator that greater compliance efforts were needed. In
addition, Northern had been specifically notified on September 23, 2013 at the
time Cotie terminated Citation Number 6190800 that failure to correct the
hazard in the future would be considered aggravated conduct constituting more
than ordinary negligence. See Ex. S-6g.

Duration of
Violation & Operator’s Abatement Efforts

This violation had existed at least
since Citation Number 6190800 was issued at Plant 3 on September 12, 2013. Most
likely the condition dated back to April 2013 when Northern’s operating season
began, as there is no indication that this was an unusual condition at the mine
or that it had arisen suddenly.

Despite the three prior citations,
MSHA’s specific warnings to correct the hazardous condition, and the operator’s
full knowledge of the situation, Northern took no action to abate the condition
from the time it was first cited in September until this violation was issued
six weeks later. I find that the operator’s failure to abate the violation for
six weeks showed a blatant disregard for safety.

Obviousness,
Extensiveness, and Degree of Danger Posed

This violation was very obvious. Dozens
of rocks up to eight inches in size were “strewn everywhere” in the vicinity of
the crusher. Tr. 91. The photographs the inspector took show airborne rocks
being flung from the crusher and large rocks piled on top of energized electric
cables and in the main travelway next to the electrical control panel. Exs.
S-6b, S-6d, S-6e, S-6f. The danger was clear and the violation was occurring in
plain sight of the crusher operator, Foreman Goeden.

This violation also posed a high degree
of danger. The crusher was throwing large, heavy rocks 15 to 20 feet outward
into areas frequently traversed by miners, including the main travelway and the
area where the electrical panel and control trailer were located. See Tr.
95, 99, 138, 151-53; Exs. S-6a, S-6d, S-6e. This placed miners at risk of very
serious or fatal injuries regardless of whether they were wearing safety gear.

This condition was extensive in that its
scope and magnitude, including the size of the rocks and the large area
affected, put any miner within a substantial radius of the crusher in danger of
potentially fatal injuries from flying rock.

Conclusions

Considering the operator’s knowledge of
this violation, the three prior citations and the specific warnings from Cotie
that failure to correct the condition would constitute aggravated conduct, the
obviousness of the violative condition, the high degree of danger it posed
within an extensive and frequently traveled area of the mine, and the fact that
the violation had existed for more than six weeks without being abated, this
violation was an unwarrantable failure.

Because the operator knew of this
violation and there are no mitigating factors, the operator also demonstrated high
negligence.

7.     
Citation No. 8740701/Docket No. LAKE 2014-183

Koskiniemi issued this 104(a) citation
during his October 31, 2013 inspection at Plant 3 for another alleged incidence
of damage to an electrical cable under 30 C.F.R. § 56.12004. Koskiniemi
observed that the outer covering of the 480-volt cable to the Kolberg
Superstacker conveyor was cut in two places, exposing the inner conductors to
mechanical damage. The inner conductors were in good condition. The damaged
areas were approximately nine feet above the ground. Koskiniemi assessed the
violation as unlikely to result in a permanently disabling injury to one miner,
non-S&S, and the result of low negligence. Ex. S-7. The Secretary proposes
a penalty of $100.00.

The
Violation

The damaged cable runs from the
electrical panel to the conveyor, which moves crushed rock to the stockpiles. Tr.

101. The inspector surmised that the damage was caused by the cable rubbing on
     steel or being pinched. Tr. 102; see Ex. S-7d (photograph depicting
     metal equipment near cable). The area where the damage occurred is not easily
     accessed. Tr. 104.

The Respondent argues that § 56.12004 was
not violated because the damaged portions of the cable were not subject to mechanical
damage. Resp.’s Br. at 16-17. However, the very fact that the cable’s outer
jacket was damaged – in this case, apparently by rubbing or pinching – gives
rise to an inference that the exposed interior of the cable will be subject to
the same damage if the condition is not corrected. See Carmeuse Lime &
Stone, 33 FMSHRC 1654, 1661-63 (July 2011) (ALJ); Sangravl Co., 33
FMSHRC 1242 (May 2011) (ALJ). As explained by the inspector, the damage to the
outer jacket meant that the cable’s inner insulation was “out in the harsh
elements” exposed to mechanical damage through contact with rocks, dirt, water,
and pinch points and sharp edges on the metal equipment nearby.[8]
Tr. 110-11, 141-43. Accordingly, I reject Northern’s argument that the cable
was not subject to mechanical damage.

Respondent’s witness, Master Electrician
Dean Prestby,[9]
opined that the damaged cable was adequately protected and posed no risk to
humans because the inner insulation was intact. Tr. 340-42. However, damage to
an electrical cable’s outer cover gives rise to the discrete safety hazard of
an electric shock in the event that the exposed inner insulation is damaged by
the same work conditions that damaged the outer cover. Thus, the conductors are
not adequately protected when the outer cover is damaged, which constitutes a
violation of § 56.12004 due to the strict liability nature of the Mine Act and the
mandatory safety standards. See Northshore Mining Co., 35 FMSHRC 1889,
1893 (June 2013) (ALJ); Concrete Materials, Div. of Sweetman Constr. Co.,
35 FMSHRC 690 (Mar. 2013) (ALJ); Carmeuse Lime & Stone, 33 FMSHRC
1654; Sangravl, 33 FMSHRC 1242; Carmeuse Lime, Inc., 29 FMSHRC
266 (Mar. 2007) (ALJ); John Cullen Rock Crushing & Gravel, 17
FMSHRC 375 (Mar. 1995) (ALJ). Prestby did not know that damage to a cable’s
outer jacket violates § 56.12004 and generally displayed a lack of familiarity
with MSHA’s safety regulations. See Tr. 356-58. For example, he said he
would not cut the power to make an electrical repair to a cable if there were
no bare wires showing, but this would be a violation of MSHA’s lock out/tag out
requirements. Tr. 360-61. Prestby was also very reluctant to admit on
cross-examination that a cable’s inner wires are less protected when the outer
cover is missing, and suggested that rather than repairing a damaged cable jacket
or providing another layer of insulation, his preferred method for preventing
contact with the inner wires was simply to avoid touching them. Tr. 359-61. This
testimony detracts from his credibility and indicates to me that regardless of
his electrical background, he is far more willing to take short cuts and expose
persons to danger than the Mine Act contemplates. For these reasons, I
discredit his opinion that the cable’s inner conductors were adequately
protected.

I find that this violation has been
established.   

Gravity
& Negligence

This violation is non-S&S and unlikely
to cause injury because the damaged portion of the cable was not easily
accessed by miners and the inner conductors were in good shape. Tr. 104. Low negligence
is appropriate because the damage to the cable was not easily seen due to its
location approximately nine feet above the ground. Tr. 105.

8.     
Citation No. 8740827/Docket No. LAKE 2014-111

Inspector Sichmeller issued this 104(a) citation
on September 4, 2013 for a violation of 30 C.F.R. § 56.12004 at the Portable
Crusher. In this instance, the outer protective jacket of the 480-volt power
cord supplying power to the superior power stacker was cut in four places. The
cuts ranged from one to two inches in length and exposed the inner conductors,
which were found to be discolored from exposure to dirt and moisture. Ex. S-8.

This
violation was assessed as S&S, reasonably likely to cause a fatal injury
affecting one miner, and the result of moderate negligence. The violation was
terminated on September 11, 2013 because the mine had closed without being
inspected for compliance. A warning was included in the termination paperwork placing
the operator on notice that the hazard must be corrected before putting the
cable back into use to avoid an unwarrantable failure violation. Ex. S-8. The
Secretary has proposed a $1,944.00 penalty.

The
Violation

Foreman Alan Speck told Sichmeller that
this was a 480-volt cable. Tr. 161. It ran from the generator down the conveyor
frames and connected to a number of pieces of equipment. Tr. 164. It had been
used earlier in the day. Tr. 161. The largest of the cuts the inspector
observed in the cable’s outer jacket was a half inch or more in width and two
inches long. Tr. 159-60; see Ex. S-8c. He could not determine if the
inner conductors were damaged or not because there was so much dirt packed
inside the cable. Tr. 159. 

The Respondent again argues that it did
not violate § 56.12004 because the cable was not exposed to mechanical damage
and was adequately protected in that its inner insulation and conductors were intact.
Resp.’s Br. at 17-18. I reject these arguments for the reasons discussed above in
connection with Citation Number 8740701. The cited cable was subject to
mechanical damage in that the same conditions that had damaged the outer jacket
could also damage the inner insulation, exposing miners to an electric shock
hazard due to the exposure of the inner conductors. In fact, there is evidence
the inner parts of the cable had already incurred mechanical damage, as the
insulation was discolored and encrusted with mud and dirt and some of the inner
conductors were visible. Tr. 251-53. The inspector could not even tell whether
the conductors were intact. Tr. 159. Although Prestby testified that the cable was
adequately protected and posed no shock hazard, he did not observe it in situ
and apparently failed to consider the evidence that the cable’s interior was
already damaged. Tr. 358. For the reasons noted above, his opinion is further
discredited because his views on safety do not comport with the protective
purpose of the Mine Act and regulations. 

I find that the cable’s inner conductors
were not adequately protected from mechanical damage. This violation has been
established.

S&S/Gravity

Sichmeller assessed this violation as
S&S because, unlike the situation cited by Koskiniemi, the condition of the
inner conductors could not be determined because they were covered with dirt
and moisture. It was apparent, however, that there was discoloration,
indicating that deterioration had already set in. Tr. 162, 251-52. Also
considered was the location of the cable. Because the cable connected conveyors
and other pieces of equipment, it crossed over frames and other “exposure
points,” making mechanical damage likely. Tr. 163. The final consideration was
that the electrical power system to which the cable was attached was improperly
grounded at the time of the inspection. Had a miner made contact with the
damaged cable while it was connected to the improperly grounded system, the
miner could have become the ground fault, leading to electrocution. Tr. 163-64,
275-76. The inspector believed that the injury reasonably likely to occur would
be a fatality, based upon his knowledge of the mining industry. Tr. 164.

I find that this violation contributed
to the discrete safety hazard that a miner would come into contact with the
cable’s inner wires. This hazard was reasonably likely to result in injury
during continued normal mining operations based on the cable’s location, which
was subject to both continued mechanical damage and human contact; the fact
that the cable’s inner insulation was already damaged, exposing some of the
inner wires; the improper grounding of the electrical system to which the cable
was attached; and the voltage carried by the cable. These factors establish a
reasonable likelihood of human contact with a bare conductor and resultant electrical
shock. I reject Prestby’s contrary testimony that the cable posed no shock
hazard because he did not observe the wires himself, and moreover he appears
not to have accounted for the preexisting damage to the cable’s inner insulation
that had already exposed the inner wires, which by his own testimony would have
presented a shock hazard. See Tr. 358-59. This was a 480-volt cable
capable of producing an electrical shock that would cause very serious or even
fatal injuries. Because this violation contributed to a discrete safety hazard
that was reasonably likely to result in serious injury with continued normal
mining operations, the violation is S&S.

The gravity of this violation is serious
in that it posed a risk of serious injury or death due to electrical shock.

Negligence

Moderate negligence is appropriate
because the four damaged sections of the cable were relatively large, were
visible from the main travelway alongside the conveyors, and should have been
discovered during a workplace examination. Tr. 165.

9.     
Order No. 8740828/Docket No. LAKE 2014-110[10]

This section 104(d)(2) order was written
on September 4, 2013 by Inspector Sichmeller for a violation of 30 C.F.R. §
56.12025 at the Portable Crusher. The cited mandatory standard states in
pertinent part: “All metal enclosing or encasing electrical circuits shall be
grounded or provided with equivalent protection.” 30 C.F.R. § 56.12025. The
narrative section of the citation reads as follows:

There was not ground provided for on
site (sic) Generator trailer and the ground rod provided for the job trailer
was pulled and sitting in the Job trailer. This did not ensure proper grounding
of the electrical equipment and exposed personnel to the electrical hazards. Reportedly
by the on site (sic) foreman he had pulled the ground for the job trailer and
had never reinstalled prior to putting the plant back in operation today, and
that he was never provided anything for grounding the Main generator trailer
and the trailer has been on site since he arrived and moved to this location in
8-13-2013. The company was cited for this violation on the past regular safety
inspection. The company has engaged in aggravated conduct constituting more
then (sic) ordinary negligence by not ensuring that proper grounding of
equipment is being conducted or providing proper grounding equipment to be
installed at the site. This violation is a (sic) unwarrantable failure to
comply with a mandatory standard.

Ex.
S-9.

The violation was assessed as reasonably
likely to result in a fatal injury to one miner, S&S, and the result of
high negligence. The citation states that the cited standard was violated on
one prior occasion at the mine within the preceding two years. Ex. S-9. The
Secretary proposes a penalty of $7,176.00 for this violation.

The
Violation

Secretary’s
Evidence  

As Sichmeller was conducting his
inspection, his attention was drawn to the main generator trailer, the metal
trailer housing the electrical system that powers all the plant equipment, by a
sign posted on the trailer stating that it must be grounded. Tr. 167, 172; see
Ex. S-9b. Electrical grounding is the process of connecting an electrical
circuit to the ground to make the earth part of the circuit. 30 C.F.R. § 56.2. This
can be accomplished through various means, such as a ground plate or a rod
driven into the ground and wired to the electrical system. Tr. 170.

Sichmeller saw there were no ground plates
or rods at Northern’s generator trailer and it was not in direct contact with
the ground because it was sitting on tires and wooden blocks. Tr. 167-68; see
Ex. S-9c. He discussed the situation with Foreman Alan Speck. The generator
trailer had recently been moved to the site on August 13, 2013. Tr. 168. Speck
had spoken with Kyle Schulke about grounding the generator trailer but nothing
was ever brought to the site to provide grounding. Tr. 176; Ex. S-9a. Sichmeller
observed a ground rod hanging in a different trailer, the job trailer, but the
rod was not in use. See Ex. S-9d. Speck said the rod had previously been
used to ground the job trailer but was pulled before Labor Day weekend to avoid
vandalism and was never reinstalled. Tr. 176-77.

Northern had been issued a 104(d)(1)
order by Inspector John Koivisto approximately one year earlier on September
25, 2012 under similar circumstances. In that instance, the inspector found the
ground rod inside the generator trailer. The inspector determined that the
foreman on duty had engaged in aggravated conduct constituting more than
ordinary negligence in that the foreman was aware the trailer needed to be
grounded but simply had not taken the time to install the ground rod. Ex. S-9e.[11]

Respondent’s
Evidence

Kyle Schulke testified based on his experience
working at the mine and conversations with electricians that ground rods are
useful only for guarding against lightning strikes. Tr. 288, 322, 331. He believed
that all the equipment at the plant was tied together in a single system or
circuit and that grounding at any point in the system was sufficient to protect
all of the linked components. Tr. 288-89, 293, 316, 327. At first he testified
the system was grounded by means of a panel lying on the ground with all the
wires running to it. Tr. 288-89, 293. He later said that the ground rod at the
job trailer provided grounding for the entire system. Tr. 314. Subsequently he stated
that even though the ground rod at the job trailer had been pulled over Labor
Day weekend and not replaced, the entire system was still grounded by virtue of
the interlinked plant equipment that was in contact with the ground. Tr.
317-18. He also stated without explanation that the generator itself was
“internally” grounded. Tr. 292-93.

Master Electrician Prestby testified
ground rods serve no purpose and have no effect on electrical systems. Tr. 347,
370-71. He prepared a report stating that a ground rod has “nothing to do with
personal safety” because it cannot clear a ground fault, since it does not
provide a path back to the power source to trip the circuit breaker and thereby
disconnect the electrical current. Ex. R-1. On cross-examination, however, he
conceded that the generator trailer needed to be provided with some method of
grounding and that MSHA prefers use of a grounding electrode such as a plate or
rod. Tr. 364-65.

Analysis

The cited generator is the source of
electrical power to the entire plant. Electricity tends to run back to the
source in the case of a short circuit, making the fault to ground at the
generator very important. Tr. 182. Power would run back to the generator if a
short circuit were to occur, and anyone coming into contact with the metal
generator trailer would suffer a shock because no grounding electrode was
provided and the trailer was on wooden blocks and rubber tires, meaning the
metal frame was not in contact with the ground to serve as an alternate means
of protection. Also significant is the fact that during the inspection, power
cables running from the generator to the conveyors and other electrical
equipment were found to be deteriorated, posing an additional shock hazard.

It appears from the two almost identical
grounding violations issued during two consecutive inspections that Northern is
extremely lax in its adherence to the mandatory grounding standard. See Exs.
S-9, S-9e. Northern offered testimony that the entire electrical system at the
mine was grounded, but I find this testimony to be not credible and
manufactured after the fact. Kyle Schulke is not an electrician and has no
formal training in this discipline, and his testimony was inconsistent and
unconvincing. Tr. 286-87. Prestby’s testimony was evasive but ultimately he grudgingly
conceded on cross-examination that the generator trailer should have been
grounded.[12]
 Tr. 286-87, 364-65. The evidence does not demonstrate that there was a ground
on the mine’s electrical system at any point. Furthermore, the generator as the
source of the power was the most important component to be grounded. This
violation is established.

S&S/Gravity

The inspector assessed this violation as
S&S. He testified based upon his training and knowledge of mining industry
fatalities that improper grounding is reasonably likely to result in fatal
electrocutions. Tr. 186.

There is sufficient evidence to conclude
this violation contributed to the discrete safety hazard of the generator not
being properly grounded, which could result in a potentially fatal electrical
shock if a miner were to inadvertently become a ground fault. Because there was
a violation of a mandatory safety standard which contributed to a discrete
safety hazard and any injury resulting from the hazard would likely be serious,
the first, second, and fourth Mathies elements are satisfied.

However, there is no evidence of the
likelihood a ground fault would occur or the likelihood a miner would come into
contact with any source of electrical shock resulting from the failure to
ground the generator trailer. The Secretary presented no evidence as to where
the generator trailer was located, who accessed the area, whether access had
occurred while the trailer was ungrounded, and when or how often access would
be expected to occur during continued normal mining operations. The Secretary
also did not present evidence of any factors or conditions, such as wet
conditions around the trailer, that would have increased the likelihood of a
ground fault or other dangerous electrical event occurring. There is also no
evidence as to how often or why someone would contact one of the damaged cables
that the inspector cited as making this violation more serious. Because the
Secretary has not established a reasonable likelihood of human contact or a
ground fault, he has not established a reasonable likelihood the hazard this
violation contributed to would result in an injury-causing event during
continued normal mining operations. For this reason, the evidence does not
establish this violation is S&S.

Although the violation is not S&S, its
gravity is serious by virtue of its contribution to the discrete safety hazard
of a potentially fatal electrocution accident.  

Negligence/Unwarrantable
Failure

The inspector believed that high
negligence was appropriate here because the operator had previously received a
104(d)(1) citation from Koivisto for the same hazard and because Foreman Speck
had discussed the need for grounding with Kyle Schulke, yet nothing had been
done to ground the trailer. Tr. 187. The same considerations led the inspector
to issue this violation as a 104(d)(2) unwarrantable failure order. Tr. 188. The
inspector’s testimony does not address the unwarrantable failure factors, but
the Secretary argues in his closing brief that the unwarrantable failure
designation is appropriate because of the additional electrical violations
issued the same day, the prior similar citation issued by Koivisto a year
earlier, the conversation between Speck and Schulke, and the fact that the
electrical system had not been properly grounded since the operator moved to
the site on August 13, 2014. Br. of Sec’y at 17.  

Operator’s
Notice that Greater Efforts at Compliance Were Necessary

Inspector
Koivisto had cited the mine for the same violation during the previous annual
inspection on September 25, 2012. That violation was issued to a different foreman,
Jeff Johnson, who had promptly abated the condition by reinstalling the ground
rods, which had been pulled and sitting in the generator trailer at the time of
the inspection. Ex. S-6e. Kyle Schulke testified he was not familiar with the
prior violation. Tr. 319.

The Secretary’s reliance on the prior similar
violation as a factor supporting unwarrantable failure implies that the
violation placed the operator on notice that greater efforts at compliance with
§ 56.12025 were necessary. However, a single prior violation does not serve to
place the operator on notice of an ongoing serious problem at its mine. Also, because
the prior violation was easily abated by a different foreman and promptly
terminated without the involvement of any other company representatives, I credit
Schulke’s testimony that he was not aware of the prior violation and I find that
the violation likely did not engender in the operator a heightened awareness of
the need for greater compliance efforts.

Duration of
Violation

This
violation existed at least from the time the generator trailer was moved to the
site on August 13, 2013 to the time the inspector noticed it on September 4,
2013. The inspector confirmed through his conversation with Foreman Speck and
his review of continuity and ground resistance testing records that the
generator trailer had not been grounded the entire time it was on-site. Tr.
175-76. Thus, this violation lasted at least three weeks.

Operator’s
Knowledge of Existence of Violation

& Abatement
Efforts

Foreman
Speck told the inspector he had discussed the need for grounding with Kyle
Schulke when the generator trailer was moved to the site, yet no form of
grounding had been provided. Tr. 176; Ex. S-9a. Schulke said he believed the
entire electrical system at the site was grounded through alternative means,
but his explanation of how the system was grounded was not persuasive. Additionally,
Prestby, who set up the system, admitted that the trailer needed to be
grounded. Tr. 363-64. I do not credit mine management with a good faith belief
that the generator trailer was in compliance with the requirements of §
56.12025, which clearly required the trailer itself to be grounded. The
operator knew of this violation.

Although
the operator knew of this violation, no abatement efforts were undertaken during
the three weeks the violation existed.

Obviousness,
Extensiveness, and Degree of Danger Posed

The
Secretary has not presented evidence that this condition was obvious,
extensive, or posed a high degree of danger to miners. There is no evidence as
to where the generator trailer was located, who accessed it, how often, or why,
making it impossible to determine whether the violative condition was readily
visible and to whom; whether it would have been obvious during a shift
examination; whether it affected an extensive area or number of people; or whether
there was a likelihood of human access that would increase the danger posed by
the violation. There is also no evidence of the likelihood that a dangerous
electrical event such as a ground fault would occur, which hinders my ability
to assess the degree of danger posed. However, there is evidence that the
violation was not extensive in that the only measure required to abate it was
to reinstall the ground rod at the generator trailer.   

Conclusions

On balance, I find that this violation
is not an unwarrantable failure. Although the operator knew of this violation
and failed to take any abatement efforts for the three weeks it existed, the
evidence does not show that the violation was obvious, extensive, or highly
dangerous to miners, or that the operator was on notice of an ongoing problem
that required greater compliance efforts. The operator’s conduct demonstrated a
disinterest in worker safety, but the evidence is insufficient to establish that
this conduct rose to the level of intentional misconduct or a reckless
disregard for safety. Accordingly, I find that the Secretary has not presented
enough evidence to support an unwarrantable failure designation. Because this
violation is not an unwarrantable failure, the type of action is hereby
modified to a section 104(a) citation. 

High negligence is appropriate here, as
the grounding rod was intentionally pulled out and never reinstalled when the
generator trailer was moved to this location. The fact that a grounding rod was
found in the job trailer indicates the operator was well aware of the necessity
for grounding but was lax in providing such grounding and disinterested in the
safety of the miners in this respect.

10. 
Order No. 8740829/Docket No. LAKE 2014-110

Sichmeller issued this section
104(d)(2) order[13]
on September 4, 2013 for another electrical violation relating to grounding at
the Portable Crusher. This violation was written under 30 C.F.R. § 56.12028,
which requires continuity and resistance testing of grounding systems
immediately after installation, repair, or modification and annually
thereafter. The safety standard also requires the operator to keep a record of
the resistance measured during the most recent tests that can be made available
to the Secretary or his representatives upon request. 30 C.F.R. § 56.12028. Sichmeller
issued this violation after determining that such testing had not been
conducted at the main generator trailer since its installation at the site on
August 13, 2013. Testing also had not been conducted on the job trailer when it
was placed back in service after its grounding system had been modified by
pulling the ground rod before Labor Day weekend. Ex. S-10.

This violation was assessed as reasonably
likely to result in a fatal injury to one miner, S&S, and the result of
high negligence. The citation also states the violation is an unwarrantable
failure and references the fact that the cited standard had been violated on
one prior occasion at the mine within the preceding two years. Ex. S-10. The Secretary
proposes a penalty of $7,176.00 for this violation.

The
Violation

The circumstances of this violation are
similar to those surrounding violation 8740828. Sichmeller testified that under
the cited mandatory safety standard, continuity and resistance testing, which
is a means of verifying adequate grounding by measuring “earth resistance to
ground” in ohms, should have been conducted at the generator trailer when it
was installed on-site on August 13, 2013 to ensure it was properly grounded. Tr.
190-92. The operator’s records show the job trailer and various other equipment
underwent a continuity test on August 14, 2013, but the main generator trailer
was not tested. Ex. S-10b; Tr. 320. Kyle Schulke had performed the test
starting from the ground rod at the job trailer. Tr. 314-15.

Inspector Sichmeller was puzzled as to
why the job trailer was provided with a ground rod, which he believed was
unnecessary. See Tr. 177-80, 273-74. Nonetheless, because the job
trailer had a grounding system and that system had been modified when the ground
rod was pulled before Labor Day weekend, he felt that an additional continuity
and resistance test should have been conducted on the job trailer when mining
operations resumed after Labor Day. Tr. 192, 196.

A 104(d)(1) order had been issued by
Inspector Koivisto a year earlier for a violation of the same safety standard
under somewhat different circumstances. In that instance, Koivisto had found no
records at all that continuity and resistance testing had been performed. The
citation was terminated after the operator provided documentation that
resistance measurements had been taken for various equipment at the mine,
including the generator. Ex. S-10d.  

Relying on its previously rejected
argument that the generator trailer does not need to be independently grounded,
Northern contends the August 14, 2013 continuity and resistance test did not
need to include a resistance measurement at the generator. Resp.’s Br. at 21. Prestby
also suggested that since the generator was the starting point of the circuit,
it would have no individual resistance and therefore would not need to be
tested. Tr. 368. I find no basis for the assertion that resistance testing does
not need to be conducted at the generator. The mandatory safety standard does
not provide an exception for the starting point of the circuit. Moreover, as
the source of power, the generator poses the greatest risk of shock, since power
tends to flow back to the source in the event of a short circuit. Thus, of all
the components of the electrical system, it is particularly important to
conduct resistance testing on the generator to ensure it is safely grounded. The
operator conducted such testing to terminate the prior citation written by
Koivisto and its witnesses testified resistance testing should start at the
generator. Tr. 262, 274-75, 368; Ex. S-10d. Clearly the operator knew the generator
should be tested yet failed to do so. This violation has been established.

The operator also failed to perform a
continuity and resistance test at the job trailer after its grounding system
was modified by pulling the ground rod. Presumably the test was not performed
because the operator had never reinstalled the ground rod. The operator should
have reinstalled the ground rod and tested it to make sure it was functioning
properly. Because no test was conducted, this was also a violation of § 56.12028.

S&S/Gravity

The inspector designated this violation
S&S. The discrete safety hazard contributed to by this violation is the
same as that posed by the operator’s failure to ground the generator trailer. Specifically,
if adequate continuity and resistance testing is not conducted, the operator
has no way to detect inadequate grounding, which could result in a serious, potentially
fatal electrical shock. Accordingly, I find that this violation contributed to a
discrete safety hazard and could have been expected to cause a reasonably
serious or even fatal injury.

However, the Secretary has presented no
evidence that a ground fault or other dangerous electrical event was likely to
occur and no evidence of the likelihood of human contact if such an event were
to occur. With respect to the job trailer, the Secretary has not shown that the
trailer posed a shock hazard. In fact, the inspector suggested that the job
trailer’s grounding system, although subject to the testing requirements of §
56.12028, may not actually be necessary. If the job trailer does not need to be
grounded, presumably it does not pose a shock hazard at all. With respect to
the generator trailer, the Secretary has failed to present evidence tending to
show the trailer’s location, the likelihood miners would access that area, or the
existence of any conditions that would make a ground fault likely. In short,
the evidence is insufficient to establish a reasonable likelihood the hazard contributed
to by this violation would result in an injury-causing event during continued
normal mining operations. Because the third Mathies prong is not
satisfied, I find that this violation is not S&S.

Although the violation is not S&S,
its gravity is serious by virtue of its contribution to the discrete safety
hazard of a potentially fatal electrocution accident.  

Negligence/Unwarrantable
Failure

The inspector assessed this violation as
an unwarrantable failure with high negligence because the operator had offered
no mitigating circumstances, and because the inspector believed the prior
similar violation issued by Koivisto on September 25, 2012 had placed the
operator on notice that it needed to make greater compliance efforts. Tr.
199-200. The Secretary proffers the same arguments it offered for violation
8740828 to support the unwarrantable failure designation. Br. of Sec’y at 17.

For the same reasons that violation
8740828 was not an unwarrantable failure, I conclude that this one is not
either.

Whether the
Violation Was Extensive, Obvious, and Posed a High Degree of Danger

The hazard posed by this violation was
the same as that posed by violation 8740828 – an electrocution hazard stemming
from failure to ground the two trailers. The Secretary has presented no
evidence concerning the location of the cited trailers, who accessed them, how
often, or why. It is unclear what area was affected and who would have been
endangered. There is also no evidence as to whether conditions were wet or dry
in the area or whether a ground fault was likely to occur, which would have
increased the degree of danger if proven. I find that the evidence is
insufficient to show this hazard was extensive, obvious, or posed a high degree
of danger to miners.

Operator’s Notice
that Greater Compliance Efforts Were Necessary

Although the operator was issued a prior
similar violation on September 25, 2012, the circumstances of that violation
differ significantly from this one. On the prior occasion, the operator was
cited for failure to conduct any continuity and resistance testing at all when
it began operations at a new worksite. Ex. S-10d. By contrast, here, the
operator produced documentation showing it had conducted some testing on August
14, 2013 after setting up operations at a new location. Ex. S-10b. However, the
testing was deficient in that it did not include the generator trailer, and additionally,
the operator had failed to conduct a new test when the electrical system was
modified by pulling the ground rod at the job trailer. The prior violation
would not have placed the operator on notice that these specific circumstances
would necessitate greater compliance efforts.

Operator’s
Knowledge of Existence of Violation

The generator trailer had been included
in the continuity and resistance testing performed on September 25, 2012 to
terminate the prior violation issued by Koivisto. See Ex. S-10e. This
shows the operator was aware the generator trailer needed to be included in
such testing, despite its assertions to the contrary. Kyle Schulke had
conducted a continuity test on August 14, 2013 when mining operations began at
the new site and knew the generator trailer was not included in the test.

The operator also knew that the ground
rod had been pulled at the job trailer and should have known that it was
violating the mandatory safety standard by not reinstalling the rod and
re-testing the grounding system at the job trailer.   

Duration of
Violation & Operator’s Abatement Efforts

This
violation began with respect to the generator trailer when the operator failed
to include it in the initial continuity and resistance testing conducted on
August 14, 2013. Thus, the violation lasted for three weeks before the
inspector cited it. The operator took no efforts to abate the violation during
this time period.

With
respect to the job trailer, the violation existed for less than a day. The job
trailer’s grounding system had been modified before the Labor Day holiday, and
the system should have been re-tested on the day of the inspection when mining
operations resumed.

Conclusions

The operator should have known of this
violation, but there is no evidence the violation was extensive, obvious, or
posed a high degree of danger. With respect to the job trailer, the duration of
the violation was very brief. Although the violation lasted longer with respect
to the generator trailer, which had not been tested since it was moved to the
mine site, the operator had conducted some continuity testing when it moved to
the site and was not specifically on notice from MSHA that greater compliance
efforts were necessary. I find that the evidence is not sufficient to establish
that this violation was an unwarrantable failure. The violation is hereby modified
to a section 104(a) citation. 

High negligence is appropriate here because
the operator was aware of the necessity for continuity and resistance testing,
as evidenced by its completion of such tests in the past, but failed to conduct
proper tests.

11. 
Citation No. 8740830/Docket No. LAKE 2014-111

Sichmeller issued this 104(a) citation during
his September 4, 2013 inspection of the Portable Crusher after finding that the
rear brake light, turn signal, and tail light on the CAT 980H front end loader
did not function when tested, in violation of 30 C.F.R. § 56.14100(b). He cited
a collision hazard as a likely result of this condition and assessed the
violation as S&S, reasonably likely to cause an injury resulting in lost
workdays or restricted duty for one miner, and the result of moderate
negligence. Ex. S-11. The Secretary proposes a penalty of $585.00.

The cited mandatory safety standard
states, “Defects on any equipment, machinery, and tools that affect safety
shall be corrected in a timely manner to prevent the creation of a hazard to
persons.” 30 C.F.R. § 56.14100(b). Whether a defect is corrected in a timely
manner depends on how long the defect existed and when the operator knew or
should have known about it. Lopke Quarries, Inc., 23 FMSHRC 705, 715
(July 2001). Where there is no evidence as to when the defect arose, the
Secretary has not established that it was not corrected in a timely manner. Id.

Here, the Secretary has presented no evidence
as to how long the 980 loader’s rear brake light, turn signal, and tail light
were defective. The same loader was previously cited for the same defect on
September 25, 2012. Ex. S-11b. That was almost a year earlier, which is not
significant for this type of violation. Blown out light bulbs and loose wires on
mobile equipment are common occurrences that can occur at any given moment
without warning. See Tr. 244, 298-99, 439. Northern also presented
evidence that this particular loader is “finicky” and known to have wiring
issues. Tr. 300, 439. The loader was parked and not in use at the time of the
inspection and there is no evidence showing when it was last used. Tr. 245. Thus,
aside from the uncertainty over when the defect arose, it is also uncertain
when the operator could or should have known about it.

The Secretary has failed to show the cited
defect was not corrected in a timely manner. This citation is VACATED.

12. 
 Citation
No. 8740835/Docket No. LAKE 2014-111

During his September 4, 2013 inspection
of the Portable Crusher, Sichmeller issued this 104(a) citation for a violation
of the mandatory standard at 30 C.F.R. § 56.14101(a)(2). The citation states
that the parking brake on the CAT 950G loader would not hold the truck when it
was tested with a fully loaded bucket on an inclined roadway. Ex. S-12. The cited
standard is violated when a parking brake fails to hold equipment when tested
on the maximum grade the equipment travels while holding its typical load. 30
C.F.R. § 56.14101(a)(2).

Sichmeller marked the citation as
S&S, reasonably likely to result in a fatal accident affecting one miner,
and the result of moderate negligence. Ex. S-12. The Secretary seeks a penalty
of $1,944.00.

The
Violation

The cited 950 loader is used to move
materials at the mine. When tested on a feed ramp, which has less of an incline
than the maximum grade at the mine, the 950 loader rolled backwards when the
park brake was engaged. Tr. 220-21.

Richard and Kyle Schulke testified that
a different loader, the 980, was used to feed the crusher in the pit area,
whereas the 950 was used strictly to load outgoing trucks on flat land away
from the pit’s steep inclines. Tr. 301-02, 309-10, 436-37. However, neither of
the witnesses was regularly onsite. Tr. 282, 285, 441. They did not have
firsthand knowledge of how the loader was used on a day to day basis. Also,
Kyle Schulke stated that the 950 and 980 were used interchangeably to load
trucks. Tr. 297. As the inspector pointed out, the cited 950 loader is capable
of being used anywhere at the mine and the common, expected practice in the
industry would be to use it as a backup if another loader such as the 980 went
down. Tr. 235-36.

I find the Secretary has established a
violation.

S&S

The inspector designated this violation
S&S. The Secretary has established an underlying violation of a mandatory
safety standard that contributed to the discrete safety hazard of unexpected
movement of the 950 loader when in the parked position, satisfying the first
two elements of the S&S analysis under Mathies. See Tr. 222.

However, the Secretary has not
established a reasonable likelihood that this hazard would result in injury
with continued normal mining operations under the particular facts surrounding
this violation. The inspector provided only two reasons for issuing the
citation as reasonably likely to cause injury, neither of which is compelling.

First, the inspector noted that the
operator had been cited one year ago for failing to lower the bucket on a
loader when it was parked. Tr. 222-23; Ex. S-12a. Despite the inspector’s
assertion to the contrary, this single prior incidence in no way establishes a
“practice” at the mine that would have contributed to the likelihood of an
injury-causing event under the circumstances of this only tangentially related
violation.

Second, the inspector stated that the
safety standard Northern violated is included in MSHA’s Rules to Live By, a
group of standards for which MSHA provides additional training because of their
past involvement in mining fatalities. Tr. 223. However, the inclusion of the
violated standard in the Rules to Live By fails to establish likelihood of
injury under the particular facts of this case. These facts include the
operator’s undisputed testimony that the 950 loader was used primarily for
loading stockpiled material onto trucks on flat land. See Tr. 233-34,
301-02, 309-10, 436-37. Even in the event that the loader were parked on an
incline, the Secretary did not offer evidence that anyone would be near it to
incur injury if it were to slide.

Because the Secretary has failed to
prove a reasonable likelihood that the hazard this violation contributed to was
reasonably likely to result in injury, I find that this violation is
non-S&S. Although it is non-S&S, the violation is reasonably serious in
that it contributed to the discrete safety hazard of the truck rolling
unexpectedly when in the parked position, which could have caused a serious or
fatal crushing injury.  

Negligence

The inspector assessed this violation as
involving moderate negligence, reasoning that the operator had been issued
another parking brake violation during the same inspection and others in the
past. Tr. 224; Ex. S-12a. However, the operator did not know of this violation
before the citation was issued, and the Secretary has presented no evidence as
to how long the violation existed or when the operator should have discovered
it. See Tr. 224, 302; Ex. S-12a. The prior similar citations do not
establish when the operator had reason to know the parking brake was defective
on this particular vehicle; this particular defect could have been a recent
development. I find that low negligence is more appropriate than moderate
negligence based on what the Secretary has been able to prove.

13. 
 Citation
No. 8740836/Docket No. LAKE 2014-111

Inspector Sichmeller issued this 104(a) citation
during his September 4, 2013 inspection of the Portable Crusher because the
reverse alarm on the Bobcat Skidsteer Model 863 did not function when tested. The
citation was issued under 30 C.F.R. § 56.14132(a), which requires that manually-operated
horns or other audible warning devices on mobile equipment be maintained in
functional condition. The violation is assessed as S&S, reasonably likely
to result in a fatal injury affecting one miner, and involving moderate
negligence. Ex. S-13. The proposed penalty is $1,944.00.

The
Violation

Sichmeller testified that this piece of
equipment may not have been equipped with a backup alarm from the factory, but
one had been installed on it. Tr. 231. When tested it did not function. The
skidsteer is used throughout the mine and was evidently used prior to the inspection
near the job trailer, as tire tracks were visible there. Tr. 225-26, 231. The
skidsteer can move as quickly in reverse as in forward motion and is not
equipped with side mirrors, resulting in an obstructed or limited view when
operating in reverse. Tr. 225, 232-33.

Northern asserts that this machine had a
rearview mirror, enabling operation in reverse without obstructed views. Resp.’s
Br. at 27; see Tr. 306, 440. But rearview mirrors alone are not
sufficient to provide a panoramic backwards view to the skidsteer operator. They
also do not provide an audible warning to miners on foot or operating other
machinery that the skidsteer is about to move in reverse. Section 56.14132(a)
requires audible warning devices to be maintained in functional condition
regardless of whether or not the operator’s rearward view is obstructed. The
presence of a rearview mirror thus has no bearing on whether or not a violation
of the cited standard occurred.

Northern also argues the reverse alarm
was an aftermarket installation not required by MSHA. Resp.’s Br. at 27; see
Tr. 304, 439-40. This argument fails. Even if it was not factory-installed,
the alarm was provided for safety on the machine and was not maintained in
functional condition, violating the standard. See Tr. 265-66.

This violation has been established.

S&S/Gravity

The inspector issued this citation as
S&S and reasonably likely to cause a fatality because the skidsteer is a
very heavy machine capable of causing serious crushing injuries and can be used
to move materials and clean up throughout the mine, including areas where other
miners are working on foot. Tr. 227.

The skidsteer operates in congested
spaces, as confirmed by Kyle Schulke, who testified it is used several times
per day to clean underneath the conveyors. Tr. 303. He and Richard Schulke stated
that miners are trained not to stand behind it, and therefore would not be at
risk of being struck by the skidsteer. Tr. 304, 440. However, if training alone
were sufficient to protect miners, the mandatory safety standards would all be
superfluous. Miners do not always do what is most prudent, which is why
operators are charged with a higher degree of care to protect the health and
safety of the miners. Absent a reverse alarm, a miner would not necessarily
know that the skidsteer was about to travel in reverse and that he was too
close to it. The violation therefore contributed to the discrete safety hazard that
a miner would be run over after failing to realize the skidsteer was about to
travel backward. Such an injury-causing event was reasonably likely to occur during
continued normal mining operations based upon the frequency with which the
skidsteer was used every day, the congested location where it was operated, and
the fact that as many as four miners would be working around it while in
operation. See Tr. 230. The injuries expected to occur from being struck
by this piece of heavy machinery, which would include broken bones and fatal
crushing injuries, would be very serious in nature. I find that the Mathies criteria
are met and this violation is S&S.

The gravity of this violation is serious
due to the very serious nature of the injuries expected to result from the
violation and the fact that there are often as many as four miners working in
and around the skidsteer while it is operating.

Negligence

Because the skidsteer was operated
frequently and therefore should have been examined frequently, and because it had
just been used prior to this inspection, the operator should have known the
reverse alarm was not working. See Tr. 231, 303. A mitigating factor is
that the condition could have been a fairly recent development, considering
that the Secretary presented no evidence of how long it had existed. I find
that moderate negligence is appropriate.

V.               
PENALTIES

Legal
Principles

The Commission has reiterated in Mize
Granite Quarries, Inc., 34 FMSHRC 1760, 1763-64 (Aug. 2012):

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

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

30 U.S.C. § 820(i).

The
Commission and its ALJs are not bound by the penalties proposed by the
Secretary nor are they governed by MSHA’s Part 100 regulations, although
substantial deviations from the proposed penalties must be explained using the
section 110(i) criteria. See Sellersburg Stone Co., 5 FMSHRC 287,
293 (Mar. 1983). In addition to considering the 110(i) criteria, the judge must
provide a sufficient factual basis upon which the Commission can perform its
review function. See Martin Co. Coal Corp., 28 FMSHRC 247 (May 2006).

Assessment

The parties have stipulated that the
penalties initially proposed by MSHA will not affect Northern’s ability to
remain in business and that the violations were abated in good faith. Joint
Exhibit 1.

The size of the operator’s business is
relatively small, as it is a family owned, seasonally operated business with
fewer than thirty employees. Tr. 425. I have taken into account the
appropriateness of the penalties to the size of the operator’s business, as
well as the desired deterrent effect of the civil penalties in comparison to
the size of the operator and its overall resources. See Black Beauty Coal
Co., 34 FMSHRC 1856, 1864-69 (Aug. 2012); Thunder Basin Coal Co., 19
FMSHRC 1495, 1505 (Sept. 1997).

I have also taken into account the operator’s
history of previous violations, which is set forth in Exhibit S-14. The exhibit
shows that the operator was cited for 58 violations in the 15 months preceding
the 2013 inspections, but it fails to set forth a qualitative assessment of
whether this number of violations is high, moderate, or low, detracting from
its utility in the penalty analysis. The Secretary requests that MSHA’s
initially proposed penalties for violations 8672802, 8740698, and 8740699 be
doubled based on the operator’s history of previous violations. Specifically,
the Secretary argues the operator was cited for the same violations during the
previous inspection. Br. of Sec’y at 25. I reject the Secretary’s request. Pursuant
to the Commission’s statutory authority to assess all civil penalties under
section 110(i) of the Mine Act, I have instead considered and weighed the six
statutory penalty criteria de novo without basing the penalty assessment
exclusively on MSHA’s proposal and the prior violations.

The gravity and negligence of each
violation is discussed within the body of the decision above.  

Based upon the findings as set forth
herein, I impose the following penalties:

A.    Docket
Number LAKE 2014-110

1.      Order
No. 8740828 - $1,449.00

2.      Order
No. 8740829 - $1,449.00

B.     Docket
Number LAKE 2014-111

1.
 Citation No. 8740827 - $1,944.00

2.
 Citation No. 8740830 - VACATED

3.
 Citation No. 8740835 - $750.00

4.
 Citation No. 8740836 - $1,944.00

C.     Docket
Number LAKE 2014-180 / Citation No. 8740705 - $176.00

D.    Docket
Number LAKE 2014-183

1.
 Citation No. 8740695 - $100.00

2.
 Citation No. 8740696 - VACATED

3.
 Citation No. 8740701 - $100.00

E.     Docket
Number LAKE 2014-216 / Order No. 8740699 - $2,000.00

F.      Docket
Number LAKE 2014-217 / Citation No. 8672802 - $6,458.00

G.    Docket
Number LAKE 2014-430 / Citation No. 8740698 - $2,700.00

VI.            
ORDER

Northern Aggregate, Inc. is hereby ORDERED
to pay the sum of $19,070.00 within thirty (30) days of the date of this
Decision and Order.[14]

/s/
Priscilla M. Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Michele
A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 216, Denver, CO 80204

Benjamin
Wangberg, Esq., Fuller, Wallner, Cayko, Pederson & Huseby, Ltd., 514
American Avenue NW, P.O. Box 880, Bemidji, MN 56601

[1] In this
decision, the abbreviation “Tr.” refers to the transcript of the hearing. The
Secretary’s exhibits are numbered S-1 through S-14 and the Respondent’s
exhibits are numbered R-1 through R-4.

[2] Cotie is an
industrial hygienist with a Master’s Degree of Science in public health and
industrial hygiene and toxicology. He has worked in this field for three
decades, spending the last ten or eleven years as a health specialist and
general inspector for MSHA. Tr. 16. Koskiniemi has been an MSHA inspector since
2013. Before that, he worked as a police officer and court security officer for
many years and ran an excavating company from 2004 to 2008. Tr. 65-67. Sichmeller
has about 20 years of experience in the mining industry, including about 7
years of work as a millwright performing mechanical work relating to the
milling process. He has worked as an MSHA inspector since 2003. Tr. 156-57.

[3] The dockets and
violations were not presented at trial in numerical order. They will be
addressed herein in the order in which they were presented at trial.

[4] MSHA’s Mine
Date Retrieval site shows this citation was not contested and payment of the
$2,106.00 penalty is delinquent. See http://www.msha.gov/drs/drshome.htm.

[5] This citation
has been paid and is closed.

[6] MSHA’s Mine
Data Retrieval System shows this violation has been paid and closed.

[7] See Tr.
87, 92, 129, 145 (Koskiniemi’s testimony identifying Sam Goeden as the plant
operator who accompanied him during the October 31, 2013 inspection); Tr. 417
(Eric Schulke’s testimony confirming Goeden is a foreman at the plant). I do
not credit Eric Schulke’s remark that he “doubt[ed] that [Goeden] was there the
whole time or all of the time” with Koskiniemi during the inspection. Tr. 417.

[8] Northern argues
I should adopt a definition of “mechanical damage” that includes only “damage
to electrical conductors as part of a machine’s operative function . . . or
from being exposed to operating machines.” Resp.’s Br. at 8. However, the language
of the mandatory safety standards is intended to be interpreted broadly and the
Secretary and Commission have never adopted such a narrow definition of
mechanical damage. See, e.g., Northern Illinois Serv. Co., 36
FMSHRC 2811, 2819 (Nov. 2014) (ALJ) (finding that “the effects of weathering
and/or friction” can constitute mechanical damage); Northwest Aggregates,
20 FMSHRC 518, 526 (May 1998) (ALJ) (finding that a cable was subject to
mechanical damage when moisture and dirt could enter it). The Secretary’s
interpretation of a mandatory safety standard is entitled to deference where
reasonable, Auer v. Robbins, 519 U.S. 542, 461 (1997), and in
this case it is reasonable to conclude that the cable was exposed to mechanical
damage.

[9] Prestby
testified he is an electrical contractor with 28 years of experience working on
mining equipment such as crushers and hot mix plants. He is licensed as a
Master Electrician in Minnesota and North Dakota. Tr. 332-33.

[10] Initially
issued as a 104(d)(1) citation, this violation was amended to a 104(d)(2) order
after Sichmeller reviewed the mine file and realized the mine was on the
d-chain. Tr. 166. The d-chain refers the Mine Act’s graduated enforcement
scheme promulgated in section 104(d). Once a section 104(d)(1) order has been
issued, subsequent similar violations at the same mine must be issued as
104(d)(2) orders until such time as an inspection of the mine discloses no
similar violations. 30 U.S.C. § 814(d)(2); see Lodestar Energy, Inc., 25
FMSHRC 343, 345 (July 2003). During the most recent previous inspection of the
Portable Crusher slightly less than a year earlier on September 25, 2012, the
operator had been issued a 104(d)(1) citation (No. 8665360) and two 104(d)(1)
orders (Nos. 8665362 and 8665263), one of which was issued for a grounding
violation. See Ex. S-14; Ex. S-9e. Sichmeller’s amendment of the type of
issuance was based on these prior violations.

[11] The Mine Data
Retrieval System indicates this order, Order No. 8665362, was paid without
contest and is closed.

[12] Prestby’s
testimony on this point exemplifies the evasiveness and reluctance to admit
obvious facts that detract greatly from his credibility:

Q:
Okay. Do you agree that the generator trailer needed to be grounded?

A:
The generator needed to have an equipment grounding conductor. Grounded as far
as

connected to the earth, or cords, or
what?

Q:
I’m asking in general.

A:
That’s a loose term, grounding is a loose term.

Q:
So it needed to have some kind of grounding, correct, regardless of it was
earth

grounding or wire grounding?

A:
Wire grounding, yes.

Q:
It needed to have some kind of grounding?

A:
Yes.

Tr.
363-64.

[13] As with violation
8740828, Sichmeller initially wrote this violation as a 104(d)(1) order and
later modified it to a 104(d)(2) order.

[14] 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.