Secretary of Labor v. Northshore Mining Company

Plain-English summary

An MSHA inspector arrived before dawn at Northshore Mining's iron ore processing plant and asked the control room operator to find an escort. The operator announced over the department radio that someone was needed to accompany MSHA on an inspection. Judge Jacqueline R. Bulluck held that the explicit department-wide message gave prohibited advance notice, even though it did not identify the area to be inspected and there was no proof that anyone concealed hazards. She found moderate negligence because MSHA had discussed a similar announcement with a supervisor three months earlier, while inconsistent past enforcement provided some mitigation. The judge affirmed the citation and assessed the proposed $132 penalty.

Decision snapshot

• Cited authority: 30 U.S.C. § 813(a)
• Outcome: Citation No. 9380677 was affirmed with a $132 penalty.
• Key point: An explicit radio announcement that MSHA is present for an inspection violates the advance-notice prohibition without proof of an intent to conceal hazards or actual interference with the inspection.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H
REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,
NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9954

August 2, 2019

SECRETAR Y O F LABOR                                  :                 CIVIL
PENALTY PROCEEDING

MIN E SAFET Y AN D
HEALTH                     :

ADMINISTRATIO N
(MSHA),                       :                 Docket No. LAKE 2018-277-M

Petitioner                                       :                 A.C.
No. 21-00831-465235

:

v.                                                   :

:

NORTHSHORE
MINING COMPANY,            :                 Mine: Northshore Mining Company

Respondent                                    :

DECISION

Appearances:               Barbara
Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Petitioner;

Arthur Wolfson,
Esq., Fisher & Phillips, Pittsburgh, Pennsylvania, for Respondent.

Before:                        Judge
Bulluck

This
case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health
Administration (“MSHA”) against Northshore Mining Company (“Northshore”), pursuant
to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine
Act”), 30 U.S.C. § 815(d). The Secretary seeks a civil penalty in the amount of
$132.00 for an alleged violation of section 103(a) of the Mine Act, 30 U.S.C. §
813(a).

A
hearing was held in Duluth, Minnesota. The following issues are before me: (1)
whether Northshore violated section 103(a) of the Mine Act; and, if so (2) the
degree of negligence to which the violation was attributable; and (3) the
appropriate penalty. The parties’ Post-hearing Briefs are of record.

For
the reasons set forth below, I AFFIRM the citation, as issued, and
assess a penalty against Respondent.

I.    Joint
Stipulations

The
parties have stipulated as follows:

1. Northshore
   Mining Company was an “operator” as defined in section 3(d) of the Federal Mine
   Safety and Health Act of 1977, as amended (hereinafter “the Mine Act”), 30
   U.S.C. § 803(d), at the time the citation at issue in this proceeding was
   issued.

2. Northshore
   Mining Company operated the Northshore Mining Company which was located in
   Silver Bay, Lake County, Minnesota at the time the subject citation was issued.

3. Northshore
   Mining Company is subject to the jurisdiction of the Federal Mine Safety and
   Health Act of 1977.

4. This
   proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
   Review Commission and its designated Administrative Law Judge, pursuant to
   sections 105 and 113 of the Mine Act.

5. The
   individual whose signature appears in Block 22 of the citation at issue in this
   proceeding was acting in his official capacity and as an authorized
   representative of the Secretary of Labor when the citation was issued.

6. A
   duly authorized representative of the Secretary served the citation and
   termination of the citation upon the agent of Respondent at the date and place
   stated, therein, as required by the Mine Act, and the citation and termination
   may be admitted into evidence to establish their issuance.

7. The
   total proposed penalty for the citation at issue ($132.00) will not affect Respondent’s
   ability to continue in business.

8. The
   citation contained in Exhibit A attached to the Petition for Assessment of
   Penalty is an authentic copy of the citation at issue in this proceeding, with
   all appropriate modifications and terminations, if any.

Tr.
5-7.

II.
Factual Background

Northshore
operates an iron ore processing plant in Silver Bay, Minnesota. Jt. Stips. 2-3;
Tr. 74. The plant’s large concentrator building separates iron ore from waste
materials. Tr. 73-76. The concentrator department includes the concentrator, fourteen
other buildings, and a pipeline located along a seven-to-eight mile stretch leading
to a tailings basin, where waste material is collected. Tr. 76, 89-90.

Work
at Northshore is divided into day and night shifts. Tr. 72. During both shifts,
seven employees are on duty in the concentrator department: six operations
technicians and one control room operator. Tr. 74-75, 89. Concentrator
employees communicate with one another on personal radios set to a channel
ordinarily used only by department employees. Tr. 83. Concentrator control room
operator Philip Goutermont and operations technician Jamie Gnerer were working
on the concentrator crew at the time of the inspection at issue. Tr. 71, 81-82,
88, 90-91.

On
March 6, 2018, during the night shift, MSHA Inspector Terrance Norman arrived
at the Silver Bay plant to continue an ongoing E01 inspection. Tr. 21, 23,
81-82; Ex. P–2. The regular practice at Northshore is to provide designated
personnel who are available at the safety office to escort MSHA inspectors. Tr.
109-10. However, when Norman arrived at approximately 4:00 a.m., the designated
safety representative was off-duty. Tr. 23, 82, 114-15. Finding no one at the
safety office, Norman proceeded to the concentrator control room, introduced
himself as an MSHA inspector, and asked Goutermont to find him an escort. Tr.
23, 82. Goutermont made an announcement over the department radio channel that
someone was needed to go with MSHA during an inspection. Tr. 83, 86. After
completing the day’s inspection, Norman issued a citation to Northshore for
providing advance notice of an MSHA inspection to the plant. Tr. 29-30; Ex. P–2.

III.
Findings of Fact and Conclusions of Law

Inspector
Norman issued 104(a) Citation No. 9380677 on March 6, 2018, alleging a
violation of section 103(a) of the Mine Act that had “no likelihood” to result
in an injury or illness, could not reasonably be expected to result in “lost
workdays or restricted duty,” and was caused by Northshore’s “moderate”
negligence. [1]
Ex. P–2. The “Condition or Practice” is described as follows:

On arrival to
the Concentrators [sic] Control Room, the control room operator announced over
the plant wide radio system that MSHA was in the control room and he needed
someone to go with the inspector, which gave everyone in the plant prior notice
of a [sic] inspection.

Ex.
P–2. The citation was terminated on March 7, 2018, after Northshore issued a
written policy prohibiting radio announcements and instructing its miners to contact
specific personnel to secure mine escorts for MSHA inspectors. Ex. P–2.

A.
Fact of Violation

In
order to establish a violation of the Mine Act, the Secretary must prove that
the violation occurred “by a preponderance of the credible evidence.” Keystone
Coal Mining Corp. , 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek
Pocahontas Co. , 11 FMSHRC 2148, 2152 (Nov. 1989)).

The
Secretary maintains that the prohibition on advance notice of MSHA inspections
is central to enforcement of the Mine Act, and that section 103(a) proscribes
giving advance notice to anyone for any reason, although “contacting a specific
individual directly is an acceptable means of obtaining an escort.”  Sec’y Br.
at 4, 7, 9, 10 (citing Topper Coal Co. Inc. , 20 FMSHRC 344, 348 (Apr.
1998)). After advance notice has been provided, the Secretary contends, neither
operator correction of hazardous conditions nor MSHA’s issuance of citations is
relevant to whether a violation of section 103(a) has occurred. Sec’y Br. at

10. Finally, the Secretary argues that Northshore had fair notice of the
    requirements of section 103(a). Sec’y Br. at 14 (citing Rochester &
    Pittsburgh Coal Co. , 13 FMSHRC 189, 194 (Feb. 1991)). [2]

Northshore
contends that the Secretary must show that allegedly violative conduct was intended
to provide advance notice of an MSHA inspection, and that it had “the effect of
actually providing such advance notice.” Resp’t Br. at 6, 10. Northshore argues
that Topper Coal and KenAmerican Res., Inc. support its position
that only effective and intentional advance notice of an MSHA inspection is prohibited.
Resp’t Br. at 10-13 (citing Topper Coal , 20 FMSHRC at 348-49; KenAmerican
Res., Inc. , 38 FMSHRC 1943, 1943-49 (Aug. 2016) [hereinafter, KenAmerican
II ]). It primarily rests its argument on two ALJ decisions that vacated section
103(a) citations. See Resp’t Br. at 6-10 (citing KenAmerican Res.,
Inc. , 40 FMSHRC 1544 (Dec. 2018) (ALJ) [3]
[hereinafter, KenAmerican III ], and Portable, Inc. , 36 FMSHRC
3249 (Dec. 2014) (ALJ)); Resp’t Reply Br. at 6. Additionally, Northshore
rejects any legal distinction between explicit and ambiguous conduct with
regard to section 103(a) violations. See Resp’t Br. at 6, 10, 12-13.

Inspector
Terrance Norman came to MSHA in 2014, with thirteen years experience in the
mining industry. Tr. 20-22. Norman had previously inspected Northshore in 2015
and 2017. Tr. 59-60, 61-62. He testified that Goutermont “announced on the
radio that MSHA was here and [Goutermont] needed somebody to accompany [Norman]
on an inspection.” Tr. 23. Norman explained that he issued the citation because
“[Goutermont] was giving pre-notification to the miners inside the plant that
MSHA was there and doing an inspection,” which provided “the opportunity to
correct a hazard out on the floor.” Tr. 25, 36. Norman also testified that a
similar incident had occurred on December 17, 2017 at a different location, the
pelletizer control room, where a miner announced MSHA’s presence on-site over
the radio. Tr. 34, 62-63, 65-67; Ex. P–3. He stated that, on the same day, he had
informed hot side operations supervisor Jared Conboy that the announcement was
prohibited and that, on December 18, he had discussed procedures for securing
mine escorts with Scott Blood, area manager of safety and loss control. Tr.
34-35, 51, 65-67; Ex. P–3. Finally, Norman testified that MSHA inspections are
timed so as to visit Northshore during both shifts. Tr. 29.

Philip
Goutermont has held the position of concentrator control room operator at
Northshore for almost 30 years. Tr. 70-71. He testified that he announced over
the department radio channel, “[W]e need someone to go with MSHA and inspect,”
and that his radio announcement did not indicate where MSHA was planning to
inspect. Tr. 83, 86. Goutermont also stated that over the course of his career,
MSHA inspectors had come unescorted to the control room “about a half dozen
times,” and that he had previously made radio announcements explicitly
requesting MSHA escorts, without being cited. Tr. 80-81.

Operations
technician Jamie Gnerer testified that she heard Goutermont’s radio announcement,
responded to it, and proceeded to the concentrator control room to escort
Norman. Tr. 92. Gnerer also testified that she did not know what areas of the
plant would be inspected when the team left the control room. Tr. 92-93.

Jared
Conboy and safety representative Luke Thun both testified that, in order to
abate citations during prior MSHA inspections, they had routinely made radio
announcements that mentioned MSHA, and that such conduct was not cited. Tr.
100-102, 120-121. Conboy confirmed that, in December of 2017, he and Norman had
discussed the language used in radio announcements requesting MSHA escorts. Tr.
103-06. Conboy also testified that, once over the course of each inspection
cycle, MSHA makes a night shift inspection. Tr. 110.

Scott
Blood testified that he became aware of the December 2017 incident only after
Norman issued the March 2018 citation. Tr. 134. He denied having had a
conversation with Norman in December of 2017 about the pelletizer control room
incident. Tr. 134.

The
Commission has found that explicit “warning of the inspection clearly is sufficient
to establish a violation.” Topper Coal , 20 FMSHRC at 348. Additionally,
intent can be relevant to the fact of violation where conduct is ambiguous. See
KenAmerican II , 38 FMSHRC at 1948-49. The plain language of section 103(a)
“focuses on whether advance notice of an inspection was in fact provided,” and
its purpose is “to ensure the efficacy of inspections by preventing operators
from concealing hazards before an inspector can observe them.” Id . at
1949 (citing S. Rep. No. 95-181, at 27 (1977)).

In
the instant case, the evidence establishes that, at Norman’s behest upon
entering the concentrator control room, Goutermont announced to the entire
concentrator crew over the department radio channel that an escort was needed
for an MSHA inspection.

Northshore’s
argument that “intent” and “effect” are elements required to prove section 103(a)
violations finds no support in Topper Coal and KenAmerican II . In
Topper Coal , the Commission affirmed a violation of section 103(a) where
the president of the mine, above ground at the time, had telephoned a miner
underground and said that “two federal inspectors” were in the mine and he
wanted the miners to “watch out and be careful.” 20 FMSHRC at 346 (quoting Topper
Coal Co., Inc. , 17 FMSHRC 945, 946 (June 1995) (ALJ)). According to
Northshore, the Commission’s finding that the conduct in question constituted a
“warning of the inspection” is evidence that only advance notice that effectively
impedes an inspection is prohibited. Resp’t Br. at n.13 (citing Topper Coal ,
20 FMSHRC at 348). However, the Commission’s use of the word “warning” relates
to the effectiveness of the communication in conveying information, rather than
the effectiveness of the communication in impeding the inspection. See Topper
Coal , 20 FMSHRC at 348. Northshore also contends that Topper Coal
supports an intent requirement for establishing section 103(a)
violations. Resp’t Br. at 10-11; Resp’t Reply Br. at 4. While it is true, as
Northshore points out, that Topper Coal “does not establish a point of
law that violative advance notice may occur regardless of intent,” that case establishes
neither an intent nor an effect requirement. See Resp’t Reply Br. at 4.

The
facts in KenAmerican II involve a contested exchange wherein miners
underground asked if there was “company outside,” and a dispatcher may have responded
“yeah. I think there is.” 38 FMSHRC at 1944. The Commission found that the judge
erred by granting summary decision for KenAmerican because there remained a
“genuine issue of material fact” as to “the meaning of the communication.” Id .
at 1948. Northshore argues that “nothing in the decision limits consideration
of intent only to statements that are ambiguous.” Resp’t Br. at 12. However,
while the Commission stated that intent can be considered in a summary decision
where it is an “essential element” of the claim, its discussion of the
Secretary’s burden in proving section 103(a) violations merely indicates that
intent can be relevant where the conduct at issue is ambiguous. KenAmerican
II , 38 FMSHRC at 1947. The Commission did not establish intent as an
element of all section 103(a) violations.

Likewise,
the ALJ decisions that Northshore cites do not establish that intent and effect
are requirements for establishing section 103(a) violations. In KenAmerican
III , the judge decided the
case on credibility grounds that were directly tied to its unique facts, finding
that the miner who was asked whether there was “company outside” had responded
“I don’t know,” a statement that did not constitute advance notice. 40 FMSHRC at
1552. The facts in this case, involving a department-wide announcement, are
entirely distinguishable.

In
Portable , the judge found that communications with a single miner
regarding an MSHA inspection were intended to secure an escort, and that there
was no evidence that the operator had taken corrective actions after notice had
been provided. 36 FMSHRC at 3257-58. Again, at issue here, by contrast, is the
effect of communication to the entire concentrator crew. Ex. P–2.

The
Commission, establishing in Topper Coal that “warning of the inspection
clearly is sufficient to establish a violation,” indicated that explicit
advance notice of an MSHA inspection, once conveyed, is sufficient to constitute
a violation, regardless of intended meaning or whether advance notice actually
impeded the inspection. 20 FMSHRC at 348; see also KenAmerican II ,
38 FMSHRC at 1949 (“[The] plain language [of section 103(a)] . . . focuses on
whether advance notice of an inspection was in fact provided”). Read together, Topper
Coal and KenAmerican II establish that intent is relevant where ambiguous
conduct is involved, but where the meaning of the conveyance is clear, no
intent inquiry is necessary to determine whether advance notice occurred. See
Topper Coal , 20 FMSHRC at 348; KenAmerican II , 38 FMSHRC at
1948-1951.

This reading of section 103(a) is consistent with the enforcement
goals of the Mine Act. Congress
viewed the prohibition on advance notice as a crucial part of MSHA’s “broad
right-of-entry” to make unannounced inspections, noting “the notorious ease
with which many safety or health hazards may be concealed if advance warning of
inspection is obtained.” S. Rep. No. 95-181, at 27 (1977). The unequivocal
language of section 103(a) and its related criminal provision demonstrate how
seriously Congress viewed the consequences of advance notice. See § 110(e),
30 U.S.C. § 820(e).

In
this case, the communication at issue was explicit, “[W]e need someone to go
with MSHA and inspect,” and the meaning of the message to the entire
concentrator department was clear, i.e., that MSHA was on-site for an
inspection. Based on these facts, I find that advance notice of the MSHA
inspection was provided to the plant on March 6, 2018 and, accordingly, the
Secretary has established a violation of section 103(a).

C.
Negligence

The
Secretary argues that moderate negligence is appropriate because Northshore had
been cautioned previously about violating section 103(a) in December of 2017. Sec’y
Br. at 11-12. Norman and supervisor Conboy establish that they had discussed advance
notice following the pelletizer control room incident in December of 2017. Putting
their conversation in context, i.e., following a radio call announcing MSHA’s
presence during the inspection, it is clear that Northshore’s awareness of
prohibited advance notice was, or should have been, heightened a mere three
months prior to the instant violation, and is an aggravating factor. However, Goutermont,
Conboy, and Thun’s collective, uncontroverted testimony of inconsistent MSHA
enforcement of section 103(a) constitutes a mitigating factor. See Mach
Mining, LLC , 809 F.3d 1259, 1265-66 (D.C. Cir. 2016); U.S. Steel Mining
Co., Inc. , 6 FMSHRC 2305, 2310 (Oct. 1984). Given these considerations, I
find that Northshore was moderately negligent in violating the advance notice prohibition
of section 103(a).

IV. Penalty

While
the Secretary has proposed a civil penalty of $132.00, the judge must
independently determine the appropriate assessment by proper consideration of
the six penalty criteria set forth in section 110(i) of the Mine Act, 30 U.S.C.
§ 820(i). See Sellersburg Co. , 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d
736 F.2d 1147 (7th Cir. 1984).

Applying
the penalty criteria, and based on a review of MSHA’s online records, I find
that Northshore is a medium-sized operator, with an overall history of
violations that is neither a mitigating nor aggravating factor in assessing the
appropriate penalty. [4]
The record indicates that Northshore demonstrated good faith in achieving rapid
compliance after notice of the violation. Ex. P–2. Northshore has stipulated
that imposition of the proposed penalty will not adversely affect its ability
to remain in business. Jt. Stip. 7.

The
remaining criteria involve consideration of the gravity of the violation and
Northshore’s negligence in its commission. Because providing advance notice
compromises the integrity of an inspection and endangers the health and safety
of miners, this is a serious violation, and I have found that it was caused by
Northshore’s moderate negligence. Therefore, considering my findings as to the
six penalty criteria, I find that a penalty of $132.00, as proposed by the
Secretary, is appropriate.

ORDER

WHEREFORE , it is ORDERED
that Citation No. 9380677 is AFFIRMED , and that Northshore Mining
Company PAY a civil penalty of $132.00 within thirty days of this
Decision. [5]
ACCORDINGLY , this case is DISMISSED .

/s/
Jacqueline R. Bulluck

Jacqueline R.
Bulluck

Administrative
Law Judge

Distribution:

Barbara
Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S.
Dearborn St., 8 th Fl., Chicago, IL, 60604

Arthur
Wolfson, Esq., Fisher & Phillips, 301 Grant St., One Oxford Center, Ste.
4300, Pittsburgh, PA, 15219

[1] Section 103(a)
of the Mine Act provides, in relevant part, that “[i]n carrying out the
requirements of this subsection, no advance notice of an inspection shall be
provided to any person . . . .” 30 U.S.C. § 813(a).

[2] Northshore
makes clear that it is not raising fair notice as a defense. Resp’t Reply Br.
at 8. However, whether Northshore had a heightened awareness of its duty to
comply with section 103(a) is addressed in the discussion of negligence.

[3] KenAmerican
III , decided on remand by the Commission of KenAmerican II , is currently
on appeal before the Commission.

[4] In the fifteen
months preceding the inspection, the operator had been cited for 240
violations, unrelated to the standard at issue in this proceeding.

[5] 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. Please include
Docket number and A.C. number.