**FEDERA****LMINESAFETYANDHEALTHREVIEWCOMMISSION**

OFFICEOFADMINISTRATIVELAWJUDGES

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December 22, 2020

 

 

 

 

SECRETARYOFLABOR                                   :                 CIVILPENALTY PROCEEDING

MINE SAFETY ANDHEALTH                       :

ADMINISTRATION(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.