Secretary of Labor v. Bluff City Minerals, LLC

Plain-English summary

At Bluff City's underground limestone mine, water was spraying onto the insulating mat for a 480-volt pump switch that had only one recognized grounding system. The company argued that the word “dry” in the electrical standard applied only to wooden platforms, not insulating mats. Judge Jacqueline Bulluck rejected that reading because mine water is conductive and a wet mat no longer provides the protection the standard requires. She affirmed the citation with the stipulated findings that injury was unlikely, a resulting injury could be fatal, and negligence was low. After independently applying the penalty criteria, she assessed $150 instead of MSHA's proposed $121.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.12020
• Outcome: Citation No. 9387334 was affirmed, and Bluff City was ordered to pay $150.
• Key point: The requirement to keep protective material dry applies to insulating mats as well as wooden platforms.

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

December 22, 2020

SECRETAR Y O F LABOR                                   :                 CIVIL
PENALTY PROCEEDING

MIN E SAFET Y AN D
HEALTH                       :

ADMINISTRATIO N
(MSHA),                         :                 Docket No. LAKE 2019-0389

Petitioner                                      :                 A.C.
No. 11-00122-498843

:

v.                                                   :

:

BLUFF CITY
MINERALS, LLC,                        :                 Mine: Bluff City
Minerals

Respondent                                    :

DECISION

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

Dennis Sullens,
Fred Weber, Inc., Maryland Heights, Missouri, 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 Bluff City Minerals, LLC, (“Bluff City”),
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 $121.00 for
an alleged violation of his mandatory safety standard regarding protection of
persons at switchgear.

A
remote hearing was conducted over Zoom. The Secretary presented testimony of
two witnesses, and had seven exhibits entered into evidence. Bluff City
appeared without legal counsel, presented no testimonial or documentary
evidence, and elected to prove its case solely by cross-examination of the
Secretary’s witnesses. The following issues are before me:      (1) whether Bluff
City violated 30 C.F.R. § 57.12020; and, if so, (2) the appropriate penalty. The
parties’ Post-hearing Briefs are of record.

After
consideration of the evidence, and observation of the witnesses and assessment
of their credibility, I AFFIRM the citation, as issued, and assess a
penalty against Respondent for the reasons set forth below.

I.    Joint
Stipulations

The
parties have stipulated as follows:

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

2. Bluff
   City Minerals, LLC, (“Bluff City”) is the operator of the Bluff City Minerals
   Mine, Mine ID: 11-00122, located in Alton, Illinois.

3. Bluff
   City is a mine, as defined in Section 3(a) to the Mine Act, 30 U.S.C. § 802(h).

4. Bluff
   City engaged in mine operations in the United States, and its mining operations
   affected interstate commerce.

5. The
   citation at issue in this proceeding is listed in Exhibit A of the Petition,
   and was issued on the date set forth therein.

6. Pursuant
   to Section 110(i) of the Mine Act, 30 U.S.C. § 20(i), the Secretary has
   assessed a civil penalty in the amount of $121.00 against Respondent.

7. Citation
   No. 9387334 was properly served by a duly authorized representative of the
   Secretary upon an agent of Bluff City, and may be admitted into evidence for the
   purpose of establishing its issuance.

8. On
   July 17, 2019, at the time of the inspection, the insulated mat at the start-up
   switch and disconnect of the S-11 water pump had water spraying on it.

9. The
   S-11 water pump is an automatic pump, and the float turns it on and off.

10. From
    July 10, 2019, through July 17, 2019, the S-11 pump was checked “okay” on the
    workplace examination book.

11. From
    July 10, 2019, through July 17, 2019, the wet insulated mat was not identified
    on any workplace examination book.

12. From
    July 10, 2019, through July 17, 2019, the pipe leaking water onto the wet
    insulated mat was not identified on any workplace examination book.

13. The
    payment of the assessed penalty would not affect the mine’s ability to continue
    in business.

14. The
    gravity of the violation was “unlikely” to cause an injury reasonably expected
    to be “fatal.”

15. The
    negligence was “low.”  

Tr.
8-10, 123.

II.
Factual Background

Bluff
City owns and operates the Bluff City Minerals Mine (“mine”), an underground limestone
mine in Alton, Madison County, Illinois. Jt. Stip. 2. On the morning of July
17, 2019, MSHA inspector Phillip Walker arrived at the mine to conduct an E01 inspection.
Tr. 21-22. The inspection party included safety supervisor Austin Subke, underground
superintendent Terry Roberts, and miners’ representative Trevor Kroeschel. Tr. 35.
During the beginning of the inspection, while the inspection party was
traveling underground, Walker spotted a water leak, and the inspection party
exited the truck to check on the condition. Tr. 27-29, 35. Walker identified a waterline
valve as the source, and observed water spraying on the insulated mat situated below
the start-up switch and disconnect for the S-11 water pump. Jt. Stip. 8; Tr. 27-33,
36-37, 40-41. After discussing the instillation’s grounding with Kroeschel and
inspecting it, Walker informed the inspection party that he would be issuing a citation.
Tr. 41-42, 48-51. To eliminate the alleged hazard, the S-11 pump was turned off,
the wet mat was removed to dry, and parts were ordered to repair the valve. Tr.
48-49. Just shy of two weeks later, the citation was terminated. Ex. P–2.

III.
Findings of Fact and Conclusions of Law

Inspector
Walker issued 104(a) Citation No. 9387334 on July 17, 2019, alleging a
violation of section 57.12020 that was “unlikely” to cause an injury that could
reasonably be expected to be “fatal,” and was caused by Bluff City’s “low”
negligence. [1]
Ex. P–2. The “Condition or Practice” is described as follows:

The insulated
platform at the start-up switch and disconnect for the water pump S-11 had
water spraying on the platform creating a shock hazard. This pump is in [sic] automatic,
and a float turns it on and off. Miners rarely turn the auto switch on unless [sic]
a problem with the pump. The startup box for the pump was grounded. A miner is
at risk of a fatal electrical shock with water spraying on the insulated
platform.

Ex.
P–2. The citation was terminated on July 31, 2019, after the replacement parts
were installed on the valve.

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 Bluff City violated section 57.12020 by failing to
maintain a dry insulated mat at the S-11 water pump switch. Sec’y Br. at 8-10
(citing Markey Mines, Inc. ,  6 FMSHRC 2659, 2673 (Nov. 1984) (ALJ) (finding
a violation where there was no insulating material for protection at a
switchbox); Black River Sand & Gravel, Inc. , 3 FMSHRC 2340, 2343
(Oct. 1981) (ALJ) (finding a violation where the platform and insulating mat for
a series of electrical switches were buried under wet sand and mud); Union
Rock & Materials Corp. ,      2 FMSHRC 3289, 3291 (Nov. 1980) (ALJ) (finding
a violation where a rubber mat for an electrical switch and the surrounding
area were wet, explaining that in the event of a short, the wet mat and
surrounding water would serve as conductors). [2]
Conversely, Bluff City argues that it did not violate the standard, contending that
the term “dry” only applies to “wooden platforms.” Resp’t Br. at 1-2.

1. Summary of
   Testimony

MSHA
Inspector Phillip Walker testified that he arrived at the mine on July 17,
2019, to conduct an E01 inspection, and that safety supervisor Austin Subke,
underground superintendent Terry Roberts, and miners’ representative Trevor
Kroeschel accompanied him during inspection. Tr. 21-22, 35. Walker stated that from
the vantage point of the truck transporting the inspection party, he observed a
water spray and that, as they approached the condition on foot, he told
Roberts, “I believe that’s going to be a violation.” Tr. 27-32, 35-37. He
testified that he identified a leaky valve in the waterline used for refilling
water trucks, spraying water on the insulating mat for the S-11 water pump
switch and disconnect, that the mat and the ground around it were covered with water,
and that the mat was on top of a polyurethane pallet. Tr. 27-32, 36-37, 40-41,
53, 60-62; Ex. P–4. He explained that water spraying around electrical
equipment is dangerous because it can cause a short, a fire, or a fatal
electrical shock, if contacted. Tr. 36-37. Walker testified that
Kroeschel told him that the power switch was double grounded, that he inspected
the instillation and determined that it utilized a ground wire in the power
cable and peg grounding, and that he explained to him that there was only one
sufficient path to ground because MSHA does not recognize peg grounding as an
independent form of grounding. Tr. 41-50. He stated that, at this point, the
pump was turned off without his prompting and that, at his instruction, the mat
was moved so that it could dry, allowing him to see water on the sides and
underneath it, and on the pallet. Tr. 44-45, 48-53, 56, 60-62. He explained
that these actions eliminated the hazard, but that it was necessary to order
parts for the valve in order to terminate the citation. Tr. 48-49; Ex. P–2. Walker
stated that based on his observations, he determined that exposure to the
hazard would have been minimal because the power switch was used only twice a
day and a float allowed the pump to turn on and off automatically, but that
contact with 480 volts would likely result in a fatality, and Bluff City
exhibited low negligence because the condition had not been reported at the
time of inspection. Tr. 38-40. He opined that the standard is crucial for
miners’ safety because the mat provides insulation from electrical shock in the
event of a short occurring during operation of the pump switch, and that a wet
mat defeats the protective purpose of having an insulator since water is highly
conductive. Tr. 47-48. Walker also explained that if an electrical instillation
is double grounded, it is not required to have a dry insulating mat. Tr. 64,
66, 68-69. In response to Bluff City’s cross-examination about whether rain
would cause a violation at surface instillations, he opined that without an analysis
of a particular situation, a determination cannot be made, and explained that
surface mines can have main control areas where power to electrical
instillations can be shut down. Tr. 53-56.

MSHA
electrical specialist Bub Whitfield testified that he reviews electrical citations,
answers questions from inspectors and supervisors, and conducts inspections of
electrical systems, and that he was called to review the insulated mat and
grounding issues in this case.  Tr. 71-72, 76-77. Regarding the requirements of
the standard, he stated that based on his training and experience, it is clear
that “dry” applies to all of the listed insulating materials, explaining that
if an insulating mat is connected to the earth by any amount of conductive
material, such as water, it is no longer insulating. Tr. 90, 94, 114-18. He
clarified that while distilled water is not a good conductor, mine water is
particularly conductive. Tr. 104-05. He explained that MSHA’s Program Policy
Manual for the cited standard distinguishes between high-, more dangerous, voltage
and low-voltage instillations; low-voltage instillations, such as Bluff City’s
480-volt pump switch, require either a form of insulation and a path to ground
or, alternatively, two or more good paths to ground. Tr. 79-83, 97, 101, 114,
116; Ex. P–5. He testified that Bluff City utilized a ground conductor in the
power cable and a grounding electrode bonded to the framework of the
instillation, called “peg grounding,” and that, together, they made-up one good
grounding system. Tr. 82-85, 91; Ex. P–6. In describing peg grounding, he
referenced an MSHA technical paper that explains its dangers and unreliability,
and he went on to explain that peg grounding is not considered a sufficient
independent path to ground by MSHA because it does not return directly to the
power source. Tr. 80-84, 91; Ex. P–6. He stated that the only scenario in which
an insulating mat could be wet is if the mine were to employ a double grounding
system, rendering the mat redundant. Tr. 112-13. He explained that while
sections 57.12020 and 56.12020 contain identical language, it can be more
difficult to have two effective paths to ground in underground instillations
than in surface instillations that are more likely to be permanent, and that
underground instillations commonly employ an insulating mat and a single ground.
Tr. 80-84, 88, 93-94, 100-03. In response to a line of hypothetical questions
regarding rain at surface instillations, Whitfield described some of the ways
in which surface operations keep mats dry, and stated that electricians
typically do not use electrical equipment in the rain, and that surface operations
typically can turn off power in electrical control rooms upstream from electrical
instillations. Tr. 93-95, 100-02, 108-09.

2. Analysis

The
Secretary contends that the plain language of section 57.12020 requires Bluff
City to maintain a dry insulating mat at the S-11 pump switch. Sec’y Br. at 13-14. [3] Bluff City
argues that the regulation only requires wooden platforms to be kept dry,
asserting that insulated mats cannot absorb water and, therefore, do not create
a risk of shock when wet. Resp’t Br. at 1-2.

When
the language of a provision is plain, the plain language is the meaning of the
provision, and the sole function of the courts is to enforce the language, as
written. Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A. ,
530 U.S. 1, 6 (2000). Section
57.12020 provides, in pertinent part, that “ [d]ry wooden platforms, insulating
mats , or other electrically-nonconductive material shall be kept in place
at all switchboards and power-control switches where shock hazards exist .”
30 C.F.R. § 57.12020 (emphasis added). Considering that mine water is highly
conductive and that the objective of the standard is prevention of electrical
shock, the term “dry” clearly modifies all of the alternatives that follow . Accordingly, in
situations where this standard is applicable, insulated mats and other electrically-nonconductive
material, in addition to wooden platforms, must be kept dry . Moreover, the
plain language reading of section 57.12020, requiring all nonconductive materials
to be kept dry, is reasonably based on an understanding of electricity’s properties,
and is consistent with the protective goals of the Mine Act; the reading that
Bluff City urges not only ignores the conductivity of mine water, but clearly subverts
the Mine Act’s underlying objectives. As the Commission has noted, “safety
standards ‘must be interpreted so as to harmonize with and further . . . the
objective[s] of’ the Mine Act.” Nally & Hamilton Enters. , 38 FMSHRC
1644, 1649 (July 2016) (quoting Emery Mining Corp. , 744 F.2d 1411, 1414
(10th Cir. 1984)). Here, the clear wording of the standard protects miners from
electrical shock at switchboards and power-control switches, and the evidence establishes
that the wet insulated mat at the S-11 water pump switch created the exact hazard
that the standard was intended to prevent.

While
Bluff City correctly identifies some factual differences distinguishing Black
River Sand and Union Rock from the matter at hand, violations were
found in both cases where insulating mats were wet, cutting against Bluff
City’s theory of non-culpability. See Black River Sand , 3 FMSHRC at
2343; Union Rock , 2 FMSHRC at 3291.

MSHA’s
Program Policy Manual provides guidance for section 57.12020, explaining that “two
or more good paths to ground for fault current would eliminate the need for
insulating mats at power switches rated 650 volts or less.” Ex. P–5. Bluff City
does not affirmatively pursue any argument that peg grounding is a sufficient second
path to ground and that the mat was redundant, but simply notes that if an
instillation is double grounded, no mat is needed. See Resp’t Br. at 2-3. Indeed,
no evidence was presented to rebut the clearly established evidence that peg
grounding is not recognized as a stand-alone form of grounding, and that well-known
dangers are associated with it. [4]
Moreover, Bluff City’s utilization of the
insulated mat makes reasonable the conclusion that the operator recognized that
it had only one effective grounding system in place. Accordingly, the 480-volt water
pump switch was required
to have either a dry wooden platform, a dry insulating mat, or some other dry electrically-nonconductive
material to protect miners from shock hazards.

Bluff
City’s contentions that examining the identical surface regulation is
instructive, and that compliance on the surface would be impossible if it were
raining, are unavailing. See Resp’t Br. at 2, 4. While the language of section
56.12020 is identical to section 57.12020, surface and underground electrical instillations
operate in dissimilar environments, and there are different considerations in
achieving compliance. Unrebutted testimony establishes that finding two paths
to ground generally proves more difficult underground, that surface
instillations are more likely to be permanent, and that electricians working
underground have concerns that are peculiar to underground methods of mining.

At
this juncture, it is important to note that Bluff City’s cross-examination of
the Secretary’s witnesses was heavily weighted by its opinions about compliance
and, as such, elicited very little, if any, support for its position. The facts
in this case are uncontested: that the inspection party came upon water actively
spraying on the insulating mat for the 480-volt pump switch in the underground
instillation, that water covered the surface of the mat and its sides, and that
the mat’s underside, the pallet, and the area around the instillation were wet
also. Additionally, Bluff City only employed one recognized grounding system at
the pump switch. Consequently,
I find that a shock hazard existed at the S-11 water pump switch and disconnect,
and that Bluff City violated section 57.12020.

B.     Gravity and Negligence

The
evidence establishes that the S-11 water pump switch typically was used twice a
day, that the pump was on a float enabling it to turn on and off automatically,
and that the water leak had been unreported prior to inspection. While exposure
to this hazard was unlikely, contacting 480 volts without adequate protection would
be reasonably expected to result in a fatality. Given these considerations, the
parties have stipulated that the violation was unlikely to cause a fatal injury,
and that Bluff City’s negligence was low, stipulations that I accept as
appropriate to the facts in this case. Jt. Stips. 14, 15.

IV. Penalty

While the
Secretary has proposed a civil penalty of $121.00, 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: “(1) the operator's
history of previous violations; (2) the appropriateness of the penalty to the
size of the business of the operator;    (3) whether the operator was
negligent; (4) the effect on the operator's ability to continue in business;
(5) the gravity of the violation; and (6) whether good faith was demonstrated
in attempting to achieve prompt abatement of the violation.” 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 Sellersburg penalty criteria, and based on a review of MSHA’s online
records, I find that Bluff City is a medium-sized operator, with an overall
history of violations that is a mitigating factor in assessing the appropriate
penalty. [5]
The record indicates that Bluff City demonstrated good faith in achieving rapid
compliance after notice of the violation, and the parties stipulated that imposition
of the proposed penalty will not adversely affect Bluff City’s ability to
remain in business. Jt. Stip. 13.

The
remaining criteria involve consideration of the gravity of the violation and Bluff
City’s negligence in its commission. While the likelihood of contact with the water
pump switch at the time of an electrical fault in the system is low, because it
could result in electrocution, this is a serious violation. The hazardous
condition had not been reported during workplace examinations and, because
there is no evidence as to its duration, Bluff City’s negligence was low. Therefore,
considering my findings as to the six penalty criteria, I find that a penalty
of $150.00 is appropriate.

ORDER

WHEREFORE , it is ORDERED
that Citation No. 9387334 is AFFIRMED , and that Bluff City Minerals,
LLC, PAY a civil penalty of $150.00 within thirty days of this Decision. [6] ACCORDINGLY ,
this case is DISMISSED .

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Emelda Medrano,
Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn
Street, Room 844, Chicago, IL 60604

Dennis Sullens,
Fred Weber, Inc., 2320 Creve Coeur Mill Road, Maryland Heights, MO 63043

[1] 30 C.F.R. §
57.12020 provides that “[d]ry wooden platforms, insulating mats, or other
electrically-nonconductive material shall be kept in place at all switchboards
and power-control switches where shock hazards exist. However, metal plates on
which a person normally would stand and which are kept at the same potential as
the grounded, metal, non-current-carrying parts of the power switches to be
operated may be used.”

[2] The Secretary
notes that there are no cases addressing section 57.12020 specifically, and cites
to ALJ cases concerning the predecessor regulations for underground and surface
electrical instillations, sections 57.12-20 and 56.12-20, which are identical
to sections 57.12020 and 56.12020. See Sec’y Br. at 9 n.5.

[3] Despite
contending that the standard has a clear meaning, the Secretary raises a
deference argument, which is not addressed herein. See Sec’y Br. at 11-15; see
also Kisor v. Wilkie , 139 S.Ct. 2400, 2415 (2019)  (“[A]
court should not afford Auer deference unless the regulation is
genuinely ambiguous. If uncertainty does not exist, there is no plausible
reason for deference.” (citations omitted)).

[4] MSHA’s
technical guidance states that, “[w]hen a system is being supplied power from a
grounded power system and “peg grounding” is employed, a single ground fault
is all that is necessary to initiate a potentially fatal situation .” Ex.
P–6 (emphasis added).

[5] In the fifteen
months preceding inspection, the operator had never been cited for a violation
of section 57.12020. Ex. P–1.

[6] Payment should
be made electronically at Pay.Gov, a service of the U.S. Department of the
Treasury, at  https://www.pay.gov/public/form/start/67564508 . Alternatively,
send payment (check or money order) to: U.S. Department of Treasury, Mine
Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390.
Please include Docket and A.C. Numbers.