Norman did not ask those questions of the so-called complainants. Moreover, if complaints
came from miners changing idlers, that work was primarily done from the center walkway (Tr.
172).

The ALJ also relied on the testimony of Mr. Norman concerning what Mr. Floen might or
might not have said (ALJ 7). Mr. Floen did not testify. He also did not work regularly in the
conveyor gallery (Tr. 446-47). Further, in his discussion with Mr. Floen and the notes of these
discussions, it is not clear what he was referring to where he said that he could not tie off (Tr.
116-22). There was no need to tie off in the center walkway and that is how the belt would be
accessed when changing rollers (Tr. 167). Moreover, he allegedly said that there was no place to
tie off, presumably in the walkway, and that is manifestly untrue (Tr. 195-97). Mr. King had tied
off on September 7 and his tie off strap was still affixed to the structural steel (GX-7). The
hearsay testimony about what Mr. Floen might have said simply is not substantial evidence. Mr.
Norman’s recitation of the hearsay testimony of another Vanderson employee that he was not
always tied off is contradicted by Mr. Norman’s supervisor's notes (Tr. 186).

Northshore’s conduct was not reckless behavior and the sequence of events demonstrates
considerable efforts to evaluate and to eliminate the risk of serious bodily injury in light of all the
factors and circumstances and the information conveyed to Northshore. The ALJ’s decision was
simply not supported by substantial evidence and review is appropriate.

Il. THE ALJ’S FINDING OF UNWARRANTABLE FAILURE VIOLATIONS WITH

RESPECT TO ORDER NO. 8897220 AND CITATION NO, 8897219 WAS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE

A. Unwarrantable Failure

The Secretary has alleged that Order No. 8897220 and Citation No. 8897219 are the
result of unwarrantable failures. The Commission has defined “unwarrantable failure” as

“aggravated conduct constituting more than ordinary negligence by a mine operator in relation to

17


Length of time that the violation has existed. \n ]O Coal Co., the Commission
emphasized that the duration of time that the violative condition existed is a “necessary elementTM
of the unwarrantable failure analysis. 31 FMSHRC at 1352. The condition in JO Coal had
existed for four or five days, and the Commission remanded to the judge to consider whether
such duration was an aggravating factor. 31 FMSHRC at 1352. The Commission noted that
analysis of the duration factor may be affected by the operator’s good-faith, reasonable belief
that the condition did not exist. /d. at 1352-53.

The problem with the outer walkways had existed for several years, at least from the time
in June 2015 when the KOA report had been completed. In all likelihood, the problem also
existed prior to the report, as there is evidence that a number of miners complained about the
walkways. Even after the mine was made aware of the deteriorating condition of the walkways
from the 2015 KOA report, no maintenance or repair had occurred by the time of the accident in
September 2016. During the time between the report and the accident, the walkway continued to
crack and deteriorate. The length of time figures prominently in the evaluation of the
unwarrantable failure.

Extent of the violative condition. The extent factor is intended to “account for the
magnitude or scope of the violation” in the unwarrantable failure analysis. Dawes Rigging &
Crane Rental, 36 FMSHRC 3075, 3079 (Dec. 2014). Facts relevant to the extent of the
condition include the size of the affected area and the number of persons affected. Jd. at 3079-
80. In Dawes, the Commission found that where only one miner endangered himself by walking
under a suspended load, the violation was not extensive. /d. at 3080.

Here, the violation included the entire 300 feet on the east outer walkway, as well as the
west outer walkway. Accessing the conveyor system was most often done by using the
reinforced, center walkway. Still miners explained that they used the outer walkway to perform
maintenance tasks and on the day of the accident, the contract miners had been using the
walkway for two days. The violation was thus extensive and workers were called to use the
entire area.

Whether the operator has been placed on notice that greater efforts were necessary for
compliance. A mine operator may be put on notice that it has a recurring safety problem in need
of correction where there is a history of similar violations. Black Beauty Coal Co. v. FMSHRC,
703 F.3d 553, 561 (D.C. Cir. 2012); JO Coal, 31 FMSHRC at 1353; Peabody Coal Co., 14
FMSHRC 1258, 1264 (Aug. 1992). Prior violations may be relevant even though they did not
involve the same regulation or occur in the same area of the mine within a continuing time
frame. JO Coal, 31 FMSHRC at 1354; San Juan Coal Co.,29 FMSHRC 125, 131 (Mar. 2007);
Peabody, 14 FMSHRC at 1263. It is not required that the past violations were the result of
unwarrantable failure. JO Coal, 31 FMSHRC at 1354; Consol. Coal Co., 23 FMSHRC 588, 595
(June 2001). Past discussions with MSHA can also serve to place the operator on notice that
greater efforts were necessary to assure compliance with the safety standard. Consol. Coal Co.,
35 FMSHRC 2326, 2342 (Aug. 2013) (citations omitted),



They understood that because of its bad condition, they should use fall protection when on the
east walkway but they were often not able to do so, Lehtinen explained that he learned from
Gornik that workers must tie off on that outer walkway because the floor was bad. Most
importantly, the KOA engineering report clearly indicates that the outer walkways were in bad
condition and, at best, protective measures should be used when accessing the outer east
walkway.

The KOA report. Secretary’s Exhibit 12, indicates that the walkways were not safe for
personnel to use until repaired. All of the evidence—the falling chunks of cement, the cracks,
and the heaving, for several years—points to the fact the walkway was not maintained.
Respondent argues that the fall protection requirement was a mitigating factor but fall protection
is not a substitute for keeping the walkway in good condition. It may lessen an injury, but it does
not prevent the walkway from being dangerous. Norman relied upon the findings in the KOA
report in issuing the violation and specifically referred to the report’s conclusion that “the
deteriorated condition of the conveyor walkway slabs is significant . . . access to the outer
walkway slabs be restricted.” | find that there is substantial evidence to support the alleged
violation. Further, | find that the violation was significant and substantial.

Significant and Substantial

The Secretary alleges that the violation was highly likely to result in fatal injury and was
significant and substantial (“S&S”). An S&S violation is described in Section 104(d)(1) of the
Mine Act as a violation “of such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A
violation is properly designated S&S “if based upon the particular facts surrounding that
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
$22, 825 (Apr. 1981).

In Mathies Coal Co., the Commission established the standard for determining whether a
violation is 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).

The second element of the Mathies ’ test addresses the likelihood of the occurrence of the
hazard the cited standard is designed to prevent. Newtown Energy, Inc., 38 FMSHRC 2033,
2036 n.8 (Aug. 2016). The Commission has explained that “hazard” refers to the prospective
danger the cited safety standard is intended to prevent. /d. at 2038. For example, Newtown

11


posed by the condition of the walkways. Respondent believed, albeit wrongly, that requiring
miners to wear safety harnesses would solve the problem with the walkways until repairs were
completed. This type of conduct, while careless and indicative of reckless disregard, does not
meet the heightened negligence showing required under Am. Coal, 38 FMSHRC 2062.
Therefore, | find that the violation of section 56.11002 cited in Order No. 8897220 is not flagrant
within the meaning of section | 10(b)(2) of the Act.

B. Citation No. 8897219

Based upon his observations and the interviews conducted at the mine following the
accident in September 2016, Inspector Norman issued Citation No. 8897219 for a failure to
barricade the east outer walkway. The Secretary alleges a violation of 30 C.F.R. § 56.20011,
which provides 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.
Warning signs shall be readily visible, legible, and display the nature of the hazard and any
protective action required.” There is no dispute that there were no warning signs or barricades at
the east walkway. The only barricades related to the walkway had been placed below the
walkway when chunks of cement were observed falling from the walkway onto the area below
where miners traveled. Those barriers had been removed at the time of the incident and had no
effect, in any event, on the walkway above.

The Secretary alleges that the violation is proven because there were no barricades or
warnings to alert miners to the hazards of the walkway. The condition of the walkway, while
perhaps known to some workers, was not obvious to contractors and miners who did not
routinely work in the area. The condition was not immediately obvious because the walkway
was covered in mud and 6 to 12 inches of pellets. The mine defends that the Secretary did not
prove that the condition of the walkway was not obvious. Further, the walkway was in good
condition and it was not often used.

1 find that the Secretary has shown that the walkway created a safety hazard to miners
that was not immediately obvious due to the mud and pellets on the surface. The area should,
therefore, have had barricades or warning signs and none were present. The discussion regarding
the first violation cited by Norman relates to the safety hazard of the walkway and is
incorporated here, along with the S&S discussion related to the hazards. A number of miners
told Norman that the walkway was a safety hazard and they avoided it. Floen advised the
inspector that it was necessary to access the outer walkways at least every four to six weeks to
change the conveyor rollers or idlers. Other maintenance was done from the walkway as
necessary, including hosing down the pellets to clear the walkway.

The walkway created a safety hazard, as evidenced by the cracks, the chunks of cement
that had fallen to the ground below, and the lack of reinforcement similar to that on the center
walkway. In addition, the KOA report specifically said that the load bearing capacity could not
be determined, and the area should be restricted. The cracks in the concrete, coupled with the
spalling and uneven surface, created a hazard on the walkway. In addition, the walkway was in
such poor condition that holes could develop leading to a miner putting a foot through the floor


tribunal is required to set aside a lower tribunal’s findings if “[t]he solid sense of the entire

record” does not support those findings. Victor Products Corp v. NLRB, 208 F.2d 834, 839

(D.C. Cir. 1953).

In this case, no violation of Section 56.11002 was supported by substantial evidence. In
that regard, a threshold issue for this entire matter is what was the actual condition of the outer
walkways of the 62/162 conveyor gallery. The ALJ’s finding of a violation is not based on the
actual condition of the walkways. Instead, she relied on the testimony of the inspector and the
engineer from Tech Support as to the observable perlite panels. There are significant problems
with this reliance that leaves the ALJ’s finding unsupported by substantial evidence.’

The walkways contained two distinct components: (1) the perlite panels, which facilitated
the initial construction process: and (2) the concrete floor, which was reinforced separately (Tr.
545, 549). The evidence adduced by the Secretary pertains only to the perlite panels (see Tr. 97-
97, 133-43, 162-64, 241-42, 247-59). The Secretary presented no evidence with respect to the
actual condition of the concrete walkway. Indeed, the issuing inspector never evaluated the
condition of the concrete (Tr. 162). The Secretary’s expert witness offered no opinion as to the
condition of the concrete (Tr. 266). The focus of the Secretary’s personnel and the ALJ solely
on the perlite to the exclusion of the concrete is insufficient to find a violation of Section
56.11002. The perlite is not in and of itself the walkway (Tr. 549).

The concrete remained in good condition. Even after the September 7, 2016 event, which
was precipitated by a steel failure, the continued strength of the concrete was demonstrated as it

proved difficult to remove and would not break, even with the use of a 16-pound sledgehammer

In Bussen Quarries, Inc., 895 F.2d at 1045, the Court overturned a decision by this ALJ
on substantial evidence grounds where she made purported credibility determinations. See also,
Canyon Fuel v. Secretary of Labor, 894 F.3d 1279 (10th Cir. 2018).

i



CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of Northshore Mining Company’s Petition
for Discretionary Review has been served on this 14th day of March, 2019, via electronic mail to

the following representative of record:

Barbara M. Villalobos, Esq.
U.S. Department of Labor
Office of the Solicitor
230 S. Dearborn Street, Room

villalobos.barbara@dol.gov

Ali A. Beydoun, Esq.
Counsel for Appellate Litigation
U.S. Department of Labor
Office of the Solicitor
201 12th Street South — Suite 401
Arlington, VA 22202-5450

Beydoun. Ali@dol.gov

S/R. Henry Moore

4818-1139-8537


criteria: the operator’s history of violations, its size, whether the operator was negligent. the
effect on the operator's ability to continue in business, the gravity of the violation, and whether
the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping with this statutory
requirement. the Commission has held that judges must make findings of fact on the statutory
penalty criteria. Se/lersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd. 736 F.2d 1147.
1152 (7th Cir. 1984). Once these findings have been made. a judge's penalty assessment for a
particular violation is an exercise of discretion, “bounded by proper consideration of the statutory
criteria and the deterrent purposes underlying the Act’s penalty scheme.” /d. at 294: see also
Cantera Green. 22 FMSHRC 616. 620 (May 2000). The Commission requires that its judges
explain any substantial divergence from the penalty proposed by the Secretary. Am. Coal, 38
FMSHRC at 1990.

The Secretary has proposed a penalty of $130,000 for the violation cited in Order No
8897220, which alleges a failure to maintain the outer walkways. The proposed penalty is based
upon a finding that the violation was flagrant. and assessed pursuant to 30 U.S.C. § 820(b)(2).
The flagrant aspect is discussed above and | have found that the Secretary has not met his burden
of proof with regard to the flagrant finding. However, there is a violation of the mandatory
standard, the violation is S&S and unwarrantable. In addressing those issues, I addressed the
negligence of the operator and agree that the mine engaged in a reckless disregard of the
mandatory standard. I have also addressed the gravity of the violation and found it to be a
serious violation that would result in death or serious bodily injury. I have also considered the
history of assessed violations. Sec’y Ex. 1. The violation was abated in good faith. The mine
has not raised the ability to pay. Northshore is considered a large mine operator. Based upon my
findings, | assess a penalty of $60,000 for this violation.

The Secretary has proposed a penalty of $69.400 for the violation cited in Citation No.
8872219. which alleges a failure to provide barricades and/or warning signs at either end of the
outer walkways. The proposed penalty was assessed as a special assessment. but in determining
the penalty, | have considered and applied the six penalty criteria. Northshore is a large operator
and did not raise the ability to pay the penalty as proposed. The history of assessed violations
shows three citations for violations of this standard in the 12 months prior to this citation. Sec’y
Ex. 1. The good faith abatement has been considered. I have addressed the negligence and
gravity in the discussion above and have found the negligence to be reckless disregard and the
gravity to be extremely serious. Therefore, | assess a penalty of $60,000.

The two agents named in this matter, Zimmer and Peterson, have been assessed a
proposed penalty of $4,300 and $4,500 respectively. I have addressed the negligence of each of
the agents above, along with the gravity of the violation. Neither of the agents has raised the
issue of the ability to pay, and neither have a history of a violation as an agent of the operator.
Based upon all of the findings. | assess a penalty of $4,000 for each.


mine used contractors more than a year later, they were told to use fall protection to avoid
tripping on the pellets, but were not warned about the condition of the walkway. There is no
indication that the policy was reduced to writing. or that any signs or notices were posted
indicating that fall protection was essential. Zimmer and Peterson did not take any steps to
repair or maintain the outer walkways after learning of the condition. both trom miner
complaints and from the written KOA reports. Peterson maintained that he did not believe
anyone would fall through the floor of the walkway and was not aware that miners could not
be tied off the entire way while accessing the outer walkways. Nonetheless, as a manager.
Peterson is trained in safety and in the requirements of the Mine Act.

The Secretary alleges that both Peterson and Zimmer were agents of the operator
based upon their supervisory roles and their authority to hire, fire. discipline miners, assign
job duties, shut down operators and direct the workforce. Northshore does not dispute that
they are agents as defined by the Act.

The Secretary argues that both Peterson and Zimmer failed to act based upon the
KOA report findings and recommendations that detailed the unsafe condition of the
walkways. Both participated in conversations with Scamehorn concerning the deteriorating
condition of the outer walkways, and agreed to require the use of fall protection rather than
repairing or maintaining the walkway as required by the MSHA standard. They were aware
that the walkways were used for maintenance and other travel, but subjected miners to an
unsafe and unsound work area.

Northshore argues that Peterson should not be charged as an agent because he did not
directly interact with Leow regarding the KOA report. but instead acted based upon what he
learned from Scamehorn. Further, following the June 2015 KOA report, Peterson was
involved in implementing the fall protection requirement and communicated the need for
fall protection to the supervisors. The mine makes the same argument on behalf of Zimmer.
but adds that on June 1, 2015, Zimmer no longer had responsibility for employees who
worked along the outer walkway. | do not find merit in the mine’s argument that Zimmer
was no longer in charge of employees in that area as of June 1, since it is undisputed that he
was involved in making the decisions after receiving the KOA report.

During the accident investigation. Zimmer and Peterson were interviewed by James
Hautamaki, a special investigator with MSHA. Based on his interviews with Zimmer and
Peterson, Hautamaki concluded that both men had knowledge of the violative condition and
failed to act to protect worker safety, Hautamaki testified that he learned that both Zimmer
and Peterson knew about the structural concerns with the floor of the outer walkways before
KOA was called in to perform the evaluation. Once they received the KOA report, Zimmer.
Peterson. and Scamehorn came to the conclusion that fall protection would be sufficient.
According to Hautamaki, neither Zimmer nor Peterson personally inspected the area before
deciding to implement fall protection, and neither manager thought to put up barricades or
warning signs to warn miners about the condition of the walkway or of the need to wear fall
protection. Hautamaki also learned that while both managers informed their respective
crews about the condition of the walkways and that access was to be restricted, a similar
warning was not given to the contractor crew in charge of cleaning the outer walkways.

26


Mr. Zimmer and Mr. Peterson knew of the condition and of the agreed-upon remedy. The ALJ's
finding that fall protection is a significant enough mitigating factor to defeat a flagrant finding
but not sufficient defeat to the imposition of individual penalties is inconsistent and compels
review. The accompanying citation for failure to barricade undermines any imposition of
liability for a violation of Section 56.11002. If restricting access is sufficient under such
standard, then what Mr. Zimmer and Mr. Peterson did was sufficient.

The evaluation of whether Mr. Peterson and Mr. Zimmer should be held individually
liable must also consider, as the ALJ did not, the fact that Mr. Zimmer and Mr. Peterson did not
directly interact with Mr. Leow (Tr. 322-24). Mr. Scamehorn discussed the condition of the
walkway and the meaning of the report with Mr. Leow and relayed what he learned to Mr.
Zimmer and Mr. Peterson (Tr. 328). Mr. Zimmer and Mr. Peterson’s frame of reference
regarding the outer walkways was only based on the information provided to them (Tr. 331).
The ALJ did not discuss this evidence and review is appropriate.

In addition, concerning Mr. Zimmer, after June 1, 2015, he no longer had responsibility
for employees who worked along the outer walkway. On that date, which coincided with the
issuance of the Krech Ojard report, Mr. Zimmer’s job changed from Section Manager of Hot
Side Maintenance to Section Manager of Hot Side Asset Management (Tr. 380). In the
Maintenance position, Mr. Zimmer oversaw supervisors who directed maintenance technicians
(Tr. 381-82). However, in the Asset Management role, he oversaw reliability and planning and
scheduling of maintenance (Tr. 382). After June 1, 2015, personnel who worked under him in
these areas did not perform work on the outer walkways of the 62/162 conveyor gallery (Tr. 383,

387). Thus, as of the issuance of the Krech Ojard report, Mr. Zimmer did not direct personnel

21


The Secretary did not present evidence that the mine had been told to correct the
condition of the walkway or that it had been cited for similar violations prior to September 2016.
However, the mine was put on notice of the defective walkway through complaints made by
miners, and through the KOA engineering report in June 2015, Secretary’s Exhibit 12. The
report explains that the load bearing capability could not be determined and that access to the
walkway should be restricted. Therefore. notice has some effect on the finding of an
unwarrantable failure.

Operator's efforts in abating the violative condition. An operator's efforts in abating the
violative condition are also relevant as to whether a violation is unwarrantable. Consol. 35
FMSHRC at 2342: JO Coal, 31 FMSHRC at 1356; San Juan, 29 FMSHRC at 134. Abatement
efforts prior to or at the time of the inspection may support a finding that the violation was not
unwarrantable. Utah Power & Light Co., 11 FMSHRC 1926. 1933-34 (Oct. 1989). Conversely.
where the operator has notice of a condition, such as through previous violations or
conversations with an inspector, a failure to remedy the problem weighs in favor of an
unwarrantable failure finding. Consol., 35 FMSHRC at 2343; Enlow Fork Mining Co.. 19
FMSHRC 5, 17 (Jan. 1997). Abatement efforts relevant to the unwarrantable failure analysis are
those made prior to the issuance of the citation or order. Consol., 35 FMSHRC at 2342; /O Coal.
31 FMSHRC at 1356.

Northshore argues that instituting a policy of using fall protection when accessing the
outer walkways was an attempt to abate the condition. Peterson and Zimmer, the managers who
determined that fall protection should be used, testified that they did not understand that access
should be prohibited, but merely restricted. They agreed that the use of fall protection would
protect against injury. Even though they are trained mine managers and supervisors, they did not
consider repairing the walkway and did not see that it was maintained in a safe condition. While
the use of fall protection has some mitigating purpose. it does not correct the condition.
Therefore, no effort was made to address the deteriorating walkway itself.

Whether the violation posed a high degree of danger. A high degree of danger posed by
a violation can be an aggravating factor that supports an unwarrantable failure finding. /O Coal,
31 FMSHRC at 1355-56. In some cases, the degree of danger may be “so severe that, by itself, it
warrants a finding of unwarrantable failure. However, the converse of this proposition—that the
absence of significant danger precludes a finding of unwarrantable failure—is not true.”
Manalapan Mining Co., 35 FMSHRC 289, 294 (Feb. 2013). The degree of danger is greater
when there is a chronic problem that is ignored. Consol., 35 FMSHRC at 2343.

The hazard created by a failure to maintain the east walkway in good condition, created a
high degree of danger. The KOA engineering report explained that the outer walkways were not
safe for use unti] repairs could be made. A number of hazards had been created, including
falling through the walkway, stumbling and falling on the uneven surface, and walking on the
taconite pellets. All of these examples indicate that the violation created a serious safety hazard
and thus a high degree of danger.


Docket No. 2018-146

1. Whether the ALJ erred in finding that Mr. Peterson knowingly authorized,
ordered or carried out a violation as described in Order No. 8897220 when it was not
supported by substantial evidence.

2: Whether the ALJ erred in not addressing the 16-month delay in assessing
the penalty against Mr. Peterson.

STATEMENT OF FACTS

Citation No. 8897219 and Order No. 8897220 pertain to the 62/162 conveyor gallery at

Northshore’s Plant in Silver Bay, MN. The 62/162 conveyor contains two dual conveyor belts

located in the Yard and Docks area of the Plant (Stip. 2! They slope upward and transport
pellets to bins, where they are then loaded out onto ships (Stip. 22). There is a walkway between
the two conveyors, about 8 feet wide, which serves as the primary travelway in the gallery (Stip.
20). It is constructed of perlite panels which created the form for a concrete topping (Tr. 549).
Both the perlite and the concrete were separately reinforced (Tr. 317, 365). Steel plates were
installed under the central walkway for reinforcement (Tr. 320).

There are also walkways on the outside of each conveyor (Tr. 135, 316). These
walkways are much narrower than the central walkway and are approximately 30 inches wide
(Tr. 171, 315). They were constructed in similar fashion but did not have steel plates added (Tr.
338), The outside walkways are not normally used as a travelway. They are typically accessed
only if an idler (roller) needs to be changed along the conveyor or if cleaning is necessary (Tr.

317-18). Repairs to the concrete of the outer walkways had been made in 2009.

k References to the transcript of the hearing in this matter are designated “Tr.” References
to the Decision of the Administration Law Judge are designated “ALJ.” References to the
Stipulations in this matter are designated “Stip.” followed by the appropriate number.
References to the Secretary exhibits are designated “GX.” References to the Respondents’
exhibits are designated “RX.”


manlift and from the ground. Superfesky observed that the east outer walkway was about four
inches thick and was composed of two layers. The bottom layer was a 2.6-inch layer of perlite
containing 10-gauge, bi-directional wire mesh. Above the perlite was a 1.6-inch layer of
concrete. Superfesky observed that the mesh in the perlite layer had detached or de-bonded from
the perlite. He explained that the mesh is essential to the structure because it provides tensile
strength, which is lacking in concrete. That tensile strength was significantly diminished when
the mesh de-bonded from the perlite. Superfesky estimated that the de-bonded mesh had
reduced the load-carrying capacity of the walkway by as much as 50 percent. Superfesky also
observed cracking or spalling in the top layer of concrete in isolated areas as a result of the
freeze/thaw cycle. Superfesky noted that the structure was old and would have been through
many freeze/thaw cycles. He explained that with the loss of the tensile strength, the concrete
would be distressed and the cracking would accelerate.

Superfesky concluded that prior to the accident the walkway was structurally deficient for
foot traffic. He reviewed the mine’s maintenance records and found that there had been no
maintenance to the walkways other than to add steel plates to the center walkway. He also
reviewed the KOA report and observed that the KOA engineers had noted many of the same
indicators of deterioration in 2015 that he noted in the fall of 2016. He interpreted the KOA
report as recommending that no one access the outer walkways until repairs were made. The
KOA report referred to a strength of 3,000 psi for the top concrete layer and Superfesky
explained that such strength was insufficient to support the weight of a person along with the
weight of the large amount of taconite pellets observed on the walkway.

Superfesky explained that the east walkway was in deteriorating condition, and that the
walkway failed due to its condition. Contrary to the assertion of Northshore, the problem with
the walkway was not caused by the beam that broke but, instead, had the walkway been
maintained, it would not have failed. | find Superfesky to be a credible and knowledgeable
witness. His opinion is based on sound scientific principles and sound reasoning. He
demonstrated the various ways in which the walkway was compromised through the photographs
in Secretary’s Exhibit 17. He also testified that fall protection does not completely mitigate the
fall; the use of fall protection can result in a number of serious, if not fatal, injuries.

Patrick Leow,’ one of the engineers who prepared the 2015 KOA report, testified on
behalf of Northshore about the condition of the walkway at the time of the report. Leow’s
testimony implied that he did not believe that the walkway was in as bad of a condition as his
report had indicated in 2015. That KOA report explained that the outer walkways in the gallery
“cannot be found to be structurally adequate for use.” Sec’y Ex. 12. Leow explained that it is
difficult to calculate the load carrying capacity of concrete, and this statement simply meant that
he could not provide calculations to definitively show the load carrying capacity of the
walkways. The report also recommended “that Northshore Mining restrict access to these [outer]
walkways as they are not safe for personnel to be using until a repair has been completed.”
Sec’y Ex. 12. Leow testified that he intended that Northshore limit access to the walkways to
authorized personnel only, and not that the mine completely prohibit use of the walkways. He

2. Leow holds a master’s degree in civil engineering and is a licensed professional engineer. He
works in structural engineering. Tr. 362. His testimony was not offered as that of an expert
witness.


a violation of the Act.” Emery Mining Co., 9 FMSHRC 1997 (Rev. Comm. Dec. 1997).
Demonstrating aggravated conduct requires a showing that a violative condition or practice was
not corrected prior to the issuance of a citation or order because of “indifference, willful intent,
or serious lack of reasonable care.” Emery, 9 FMSHRC at 2003 (citing U.S. Steel Corp., 6
FMSHRC 1423, 1437 (Rev. Comm. June 1984)); Westmoreland Mining Co., 7 FMSHRC 1342
(Rev, Comm, Sept. 1985)).

The Commission has recognized various factors as relevant to the unwarrantable failure
determination, including the extent of the violative condition, the length of time that it has
existed, whether the violation is obvious or poses a high degree of danger, whether an operator
has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts
to abate the condition, and the operator's knowledge of the existence of the violation.
Consolidation Coal Co., 22 FMSHRC 340, 353 (Rev. Comm. March 2000); Windsor Coal Co.,
21 FMSHRC 997, 1000 (Rev. Comm. Sept. 1999); Mullins & Sons Coal Co., 16 FMSHRC 192,
195 (Rev. Comm. Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Rev. Comm. Aug.
1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (Rev. Comm. June 1988); Kitt Energy Corp.,
6 FMSHRC 1596, 1603 (Rev. Comm. July 1984). Each of the factors must be viewed in the
context of the factual circumstances of a particular case, and some factors may be irrelevant to
the specific situation. IO Coal Company, 31 FMSHRC 1346 (Rev. Comm. Dec. 2009). It is
well-established, however, that “all of the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or whether the level of the actor’s

negligence should be mitigated.” Consolidation Coal Co., 22 FMSHRC at 353; accord Windsor,

21 FMSHRC at 1001. A judge is to consider all relevant factors, rather than relying on one to

the exclusion of others. IO Coal, 31 FMSHRC at 1351.


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

February 13. 2019

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),
Petitioner,

NORTHSHORE MINING COMPANY.
Respondent.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),
Petitioner,

v.

MATTHEW ZIMMER, employed by
NORTHSHORE MINING COMPANY.
Respondent.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),
Petitioner,

LA
ROGER PETERSON, employed by

NORTHSHORE MINING COMPANY,
Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2017-0224
A.C. No. 21-00831-434118

Docket No. LAKE 2017-0248
A.C. No. 21-00831-435608

Mine: Northshore Mining Company

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2018-0141
A.C. No. 21-00831-457528 A

Mine: Northshore Mining Company

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2018-0146
A.C. No. 21-00831-457527 A

Mine: Northshore Mining Company


where he is ‘in a position to protect employee safety and health [and] fails to act on the basis of
information that gives him knowledge or reason to know of the existence of a violative

condition.” REB Enterprises, Inc.. Harold Miller and Richard Berry, 20 FMSHRC 203, 211

(Rev. Comm. March 1998), citing Kenny Richardson, 3 FMSHRC 8, 16 (Rev. Comm. Jan. 1981,
391-92, 427, 450-51). However, in order to sustain a Section 110(c) violation, there must be a
level of individual culpability of “unwarrantable failure,” not merely negligence. See, e¢.g.,

Freeman United Coal Mining, 108 F.3d at 362-64. “High” negligence is not sufficient. See

Freeman United Coal Mining, 108 F.3d at 364. Moreover, an individual who reasonably

believes that a particular practice is safe should not be subject to 110(c) liability concerning that
practice. See Rinker Materials, 30 FMSHRC 104, 119 (ALJ Manning Jan. 2008).°

The ALJ found that there was sufficient evidence to support the conclusion that Mr.
Zimmer and Mr. Peterson failed to act on the basis of the walkway information to protect worker
safety and health because they spoke with Mr. Scamehorn and decided to put the walkways on a
list for later repair. She noted that Mr. Zimmer and Mr. Peterson agreed to require fall protection
and instructed the supervisors regarding the need for fall protection on the outer walkways (ALJ
27). But she found that fall protection was an inadequate solution to address the violative
condition here. She found that the mine managers should have known that the conveyor
walkways must be maintained in good condition or, alternatively, restricted from access

appropriately. But that restriction occurred here. Her finding is wholly inconsistent with what

a There were 16 months between the issuance of the Order and the assessment of
individual penalties (Stip. 15-16). This delay was unreasonable and should have resulted in
dismissal of the penalties against the individuals. See, e.g., Robert J. Cox, 19 FMSHRC 1094
(ALJ Fauver June 1997); Long Branch Energy, 34 FMSHRC 1984 (Rev. Comm. Aug. 2012). It
was accompanied by prejudice as was demonstrated, in part, by Mr. Norman’s need to rely on
his notes rather than his recollection as well as the observations of recollections by other
witnesses (Tr. 157).

20


stated that his primary concern was that excessive cracks could lead to deformation of the
walkway or that small chunks could fall out, and not that someone would fall through the
walkway. While the deterioration of the walkways would continue, it would be slow, according
to Leow. Nevertheless, he concluded that there was some risk with the outer walkways and that
mitigation was necessary. He proposed limiting use of the walkways to reduce exposure and
also suggested that the mine provide protective measures for people who did use the walkway.

I do not find Leow to be a credible witness given that his testimony in 2018 departs dramatically
from the written conclusions of the 2015 KOA report.

A second engineer with KOA, David Franseen,* provided expert opinion as to the cause
of the September 7 accident. Franseen testified that due to the cleaning work being done at the
time of the accident, there was a significant amount of taconite pellets on the walkway, more
than the walkway was designed to carry. Resp. Exhibit O. Franseen determined that the
concentrated weight of the pellets caused the diagonal beam in the gallery to fracture. The
fracture of the beam then caused one of the vertical beams in the gallery to be displaced
downward. Jd, The vertical displacement of the beam created an increased vertical load on the
clip angle, a piece of steel below the concrete and perlite of the walkway. These forces caused
the clip angle to bend and rotate away and the bolts of the walkway support beam to shear off.
With the left edge of the walkway no longer supported, the concrete and perlite portions fell.
Franseen stated that the concrete portion was mainly intact with no significant holes when it was
removed after the accident. He believed the walkway would have failed as a result of the beam
failure even if it had been in brand new condition. He acknowledged that the perlite was
deteriorating, but stated that the perlite is primarily used during the construction stage as a form
to pour the concrete into and is not intended to last. Franseen explained, that in addition to the
mesh in the perlite layer, there was also mesh reinforcement in the concrete layer providing
additional strength to the walkway. Franseen’s ultimate conclusion was that the walkway was in
fact capable of supporting more weight than the primary structure of the gallery. Thus, he
believed that the weight of the taconite pellets on the walkway led to the failure of the beam
rather than to the failure of the walkway. Tr. 539. The Secretary suggests the opposite, that the
weight of the pellets caused the walkway to fail, resulting in the failure of the beam. In any
event, the failure of the beam is not definitive evidence of the condition of the walkway itself.
Instead, | rely on the KOA report, along with eye witness testimony regarding the condition of
the walkway.

The issue here is whether the elevated walkway, specifically the east side walkway of the
conveyor, was maintained in good condition. There is ample evidence to demonstrate that it was
not. Even if it had not failed during the moving of the taconite pellets, the evidence
demonstrates that the walkway was not in good condition at the time of the KOA report in June
2015 and no action to correct the condition of the walkway had been taken up to the time the
walkway failed in September 2016. Inspector Norman learned through interviews that the
maintenance crew would not walk on the east walkway, but walked up the middle walkway and
climbed over the conveyor to maintain it. Floen, one such maintenance worker, explained to
Norman that they worked in that manner because the outside walkway was in bad condition.

3. Franseen holds a bachelor’s degree in civil engineering and has done work in concrete testing
and the forensics of concrete. Tr. 512-13. He was accepted as an expert witness in the field of
structural engineering.

10


toward that area by the cleanup crew (Tr. $05). The condition of the outer walkway did not
contribute to the failure (Tr. 505-06). Ironically, any contribution to the event by the condition
of the walkway was actually due to its strength, as it was able to hold a sufficient load of pellets
that ultimately contributed to the steel failure (Tr. 506, 536, 539).’

Mr. Superfesky’s testimony that the walkway caused the beam failure was not supported
by the facts and substantial evidence. The failure of the diagonal resulted in an intersecting
vertical column at the lower end dropping approximately two feet as could be seen in the
photographs (Tr, 522). It also resulted in a support beam that formed one side of the walkway
displacing outward as Mr. Franseen clearly demonstrated (Tr. 522-23; RX-M2). The vertical
displacement caused increased vertical load on a clip angle at the lower end and as a result, that
clip angle bent 48 degrees (Tr. 526, 528; RX-M, RX-O). That clip angle supported the beam that
supported the outer edge of the walkway on the east side (Tr. 526-27; RX-M1). The bending of
the clip angle resulted in a displacing outward of this beam, which then resulted in its dropping
of the floor on its outer edge (Tr. 524-25; RX-M2, M3, M5). It remained attached on its inner
edge (RX-V). The floor did not fail and cause the whole structure to rotate. These facts were
clear from the photographs and directly contradict Mr. Superfesky’s opinion that failure of the
walkway cause the diagonal to fail. The ALJ's reliance upon his testimony is misplaced.

In addition, Mr, Norman and Mr. Superfesky construed “restricted” in the report to be
synonymous with “prohibited” but those words are not, in fact, synonyms (Tr. 168, 260). Their
opinion as to the use of that term in the Krech Ojard report should not be credited over the
testimony of Mr. Leow who wrote that report. The report specifically differentiates between
“restricted” use of the outer walkways and the “prohibited” use of heavy equipment cut into the

Pellets weigh 130-140 Ibs./ft? or more and walkways are normally designed for a load of
60 Ibs./ft? (Tr. 536).

1S


assessed a penalty of $60,000. She deleted the flagrant designation. The ALJ affirmed a
violation of 30 C.F.R. § 56.20011 with respect to Citation No. 8897219 and further affirmed the
unwarrantable and S&S findings and assessed a penalty of $60,000. She further assessed
penalties against the individuals Mr. Zimmer and Mr. Peterson of $4000 each with respect to
Order No. 8897220.

The ALJ found a violation of Section 56.11002. She rejected reliance upon Mr. Leow’s
testimony and relied upon Mr. Superfesky’s testimony (ALJ 10). She also relied upon the
testimony of Mr. Norman and his recitation of testimony from hourly witnesses (ALJ 10). While

she discussed the testimony of an expert who was present throughout the dismantling of the

structure, David Franseen, she rejected the position that the failure of the beam is not definitive
evidence of the condition of the walkway, i.e., that the weight of the pellets on the walkway
exceeded the design capacity of the walkway without failure of the walkway. She relied on the
KOA report but rejected Mr. Leow’s explanation of the ambiguous language in the report (ALJ
9-10).

She found that the condition was the result of reckless disregard (ALJ 14), relying on Mr.
Superfesky’s testimony that the condition of the walkway was the primary reason for the failure.
She found that nothing was done to correct the condition and it continued to deteriorate. She
also found that miners were “often not tied off’ (ALJ 13). She relied on the deterioration of the
perlite that was used essentially as a form for the concrete. She held that there had been a
number of complaints about the walkway before the Krech Ojard report, despite the fact that all
evidence related to alleged complaints was, at most, second-hand. She found that the walkway
could not withstand the weight of the pellets as they washed down (ALJ 14). The ALJ also

found that the condition was the result of an unwarrantable failure, despite finding that the


In November 2015, the mine was idled due to economic conditions in the steel industry,
and most of the workforce was laid off. Workers were rehired and the plant was restarted
beginning in March 2016. Tr. 552. Around that time, Erik Ollila, a maintenance supervisor,
received a report from one of the maintenance workers that material was falling from the
underside of the 62/162 gallery. Ollila went to look at the gallery and observed that there were
pieces of perlite on the ground that had fallen from the gallery. Ollila directed miners to install
jersey barriers in the areas where material was falling from above so that miners traveling under
the walkway would not be hit by falling debris. However, the roadway under a portion of the
conveyor walkway was not blocked off. Around the time the jersey barriers were installed,
Northshore discontinued a practice of using front-end loaders to knock icicles down from under
the gallery during the winter months. Tr. 127. There is no evidence of further maintenance or
safety measures taken to address the condition of the conveyor walkways.

Inspector Norman interviewed several miners at Northshore to determine how the east
outer walkway was used prior to the accident in September 2016. Steve Floen, a miner
employed as a maintenance mechanic at Northshore, informed Norman that he had worked in the
gallery the week prior to the accident, changing idlers on the conveyor. He stated that the miners
were afraid to walk down the outer walkways, and instead climbed over the conveyors to reach
them. He explained that while changing the rollers there was not always a place to tie off, so
sometimes they worked on the outer walkways without being tied off. Tr. 116, 196. Floen
claimed that he had brought these issues to the attention of his supervisor, Erik Ollila, as well as
to Roger Peterson. Inspector Norman confirmed that the central walkway rather than the outer
walkways was the usual route for travel for maintenance work, but some limited access to the
outer walkways was necessary.

As part of his inspection, Norman took photographs of the site where the accident
occurred. The photos were introduced as the Secretary's Exhibit 7. A photograph of the exterior
of the gallery taken from the mine road shows that about halfway down the length of the gallery,
the roof of the gallery had settled and a piece of siding was missing. Sec’y Ex. 7,00015. A
photograph taken closer to the area where the siding is missing shows that the upper and lower
beams on the gallery have settled significantly. Sec’y Ex. 7, 00019. Norman determined that the
failure point of the walkway was at a height of 50 feet and was located above the roadway
through the gallery. Norman also took photographs of the underside of the east outer walkway,
which show that the perlite had deteriorated to the point of falling, and the internal wire mesh of
the floor was exposed. Sec’y Ex. 7, 00086, 00088. Photographs of the west outer walkway also
show deteriorating perlite. Sec’y Ex. 7, 00097.

An engineer from MSHA Technical Support, Michael Superfesky, inspected the mine
after the accident and took photographs. One of his photographs taken from a manlift shows
mesh in one area of the walkway. Sec’y Ex. 7, 000921. There is no perlite in the mesh as there
should be; instead, the floor is visible through the mesh. There is also a significant crack in the
concrete, which Superfesky believed had been there for some time. Tr. 247-48. Another
photograph shows the underside of the walkway 15 to 30 feet up the walkway from where the
accident occurred. Sec’y Ex. 7, 000950. The mesh is showing through in this part of the
walkway as well, and much of the perlite is missing. Sec’y Ex. 7. 000950. Superfesky noted


understood that the decking was bad on the east walkway and asked the miners to tie off for that
reason, along with the slip hazard. I also credit King’s testimony that the three contract miners
did not understand that they were to be tied off the entire time while working and while walking
off the east walkway, primarily because they were told only that there was a slip hazard on the
pellets. I find that there were times when they were not tied off while standing or walking on the

conveyor walkway.

King and the other VanHouse workers spent the remainder of the shift on September 6
cleaning the east outer walkway and completed about half of the cleaning work. The following
day, on September 7, the VanHouse employees were given other work assignments and, when
those were complete, they returned to the east walkway to resume cleaning the bottom half of the
walkway. On one of King’s first turns at hosing the pellets down the walkway, he heard a loud
bang and felt the building begin to shake. Sheets of caked mud and buildup from around the
structure began to fall on him. King, who was standing on pellets, crouched down to protect
himself from the falling material. When the shaking stopped. there was a hole in the floor of the
walkway directly in front of him. He recalled looking down and seeing a front-end loader below.
He also recalled seeing the outer walls and conveyor buckling. He believed he was about 45 or
50 feet above ground when the incident occurred and that he would have been seriously injured
if he had not been tied off. King waited to be certain that the shaking had stopped, then
unhooked his fall protection and ran back up the walkway to the transfer tower. Tr. 59.

King met with the other contractors in the transfer tower and they were joined by Matt
Bailey, a maintenance technician employed by Northshore. Bailey told King he never should
have been working on the walkway. He believed the conveyor should have been shut down, and
also stated that the walkway had been in terrible condition for years and that it had been reported
to management. Bailey then drove the contractors to the breakroom in the pelletizer. There,
King discussed the accident with several other miners. Steven Floen, a second maintenance
technician employed by Northshore, became angry and replied that he had been telling the
people upstairs about this problem for a long time. Tr. 61. Floen told King he had carried heavy
equipment on that ramp many times and was lucky it hadn’t collapsed on him. The shaking King
experienced was due to a fall or buckling of the conveyor walkway, along with a broken beam
and bolts that were sheared.

King provided an incident report to the company that day describing what had happened.
At first report, King did not believe he had not been injured, but later discovered that he had
incurred a spinal cord contusion, which required pain medication and physical therapy. King
also suffered from mild post-traumatic stress disorder and sleep disturbances after the accident.

Tr. 71-73.

The next day that King was scheduled to work, he met with Gornik to receive his work
orders. King recalled that Gornik was nervous, and told King that he had been discussing the
incident with other miners. Gornik explained that people at the company had known about the
potential for a collapse and had been hoping that removing the weight of the pellets would allow
the ramp to last longer before it had to be replaced. At hearing, Gornik denied making any such
statement, claiming instead that he had no knowledge that the walkway was in danger of
collapsing and would not have sent workers onto the outer walkway if he had. Tr. 475.


Mr. Scamehorn shared the report with managers Roger Peterson and Matthew Zimmer
and the decision that fall protection should be used on the outer walkways was made Tr. 391,
405-6, 422). The requirement of fall protection was conveyed to the workforce through safety
meetings (Tr. 391-92, 427, 450-51). Management did not receive any complaints from the
workforce regarding the condition of the outer walkways or the need to wear fall protection (Tr.
392, 428, 452).

On September 6, 2016, three contract employees were assigned to clean up spilled pellets
on the east side wall of the 62/162 walkway (Tr. 467, 483). The foreman assigning the work was
told by either Mr. Peterson or Mr. Zimmer to make sure that the crew wore fall protection (Tr.
440-41, 468-477)? Dennis Lehtinen, a Northshore hourly day crew operator, gave the
instructions to the cleanup crew and instructed the crew to wear fall protection (Tr. 484). Mr.
Lehtinen went to the 62/162 conveyor gallery and made sure the crew was wearing the fall
protection correctly (Tr. 485, 493). He went to the top of the conveyor gallery and observed that
the crew members were tied off at an appropriate place (Tr. 485-87). The crew did not finish the
cleanup that day (Tr. 52-53).

On September 7, the cleanup crew was initially assigned to another job but was not
allowed to stay in that area (Tr. 488-89). They went back to the conveyor gallery to continue
(Tr. 488-89). While the cleanup crew was working on September 7, a diagonal cross member
beam failed at a series of rivet holes positioned above the walkway (Tr. 500, 519). As a result of
the steel failure, the steel structure rotated and support was removed from a portion of the
walkway. The east walkway dropped about 2-4 inches and a segment of the floor dropped at the

point of the steel failure (Tr. 522, 526, 528; RX-D, RX-M3, RX-M5).

é Mr. Zimmer had changed jobs in 2015 and was no longer responsible for the 62/162
conveyor belt but shared an office with Mr. Peterson (Tr. 379-81).

4


In November, 2014, a supervisor noticed some deformities in the concrete of the center
walkway (Tr. 306). He was not sure the cause but did not believe the condition posed an
immediate safety hazard (Tr. 306-08). He wrote a work order and assigned it to the engineering
department (RX-A).

Engineer Daniel Scamehorn received the work order and looked at the condition of the
center walkway (Tr. 314). It was apparent to Mr. Scamehorn that water and dirt had gotten
between the steel plates and the concrete of the center walkway, causing the heaving (Tr. 323).
Mr. Scamehorn checked only the center walkway identified in the work order (RX-A).

Mr. Scamehorn contacted the engineering firm Krech Ojard & Associates (*“KOA” or
“Krech Ojard”) for a second opinion (Tr. 323-24). Krech Ojard engineers performed site visits
on March 26, 2015 and May 6, 2015 (Tr. 324). There were no holes in the outer walkways (Tr.
364). On June 1, 2015, it issued a report authored in part by Patrick Leow (GX-12). Mr. Leow
calculated the strength of the center walkway based on the presence of the reinforcing steel
plates (Tr. 367). He made no calculations on the outer walkways (Tr. 367-68). The report stated
that the use of the heavy equipment cart on the center walkway should be “prohibited” and that
general access to the outer walkways should be “restrict[ed]” pending a permanent repair (Tr.
325-26; GX-12). Krech Ojard’s use of the term “restrict” with respect to the outer walkways to
was indicate that there was not an outright prohibition on travel along the outer walkways, so
long as travel was minimal and further preventative safety measures were taken (Tr. 370-71).
Mr. Scamehorn had a follow up discussion with Mr. Leow, who indicated that any question
about the concrete of the outer walkways pertained to localized spots and did not portend a
collapse of the walkway (Tr. 330). Northshore thereafter required anyone present along the outer

walkways to use fall protection (Tr. 331-33, 427).


center walkway. Interestingly, the other standard that was cited, 30 C.F.R. § 56.20011, clearly
contemplates restricting access and permitting it with “any protective action” required. It is
similar to what Mr. Norman wanted to accomplish with Citation No. 8897219. The ALJ's
reliance on Mr. Leow’s report, which was ambiguous, but not his explanation of that report or
the understanding of what he conveyed to Northshore, is inconsistent and results in a finding not
supported by substantial evidence.

In addition, it is undisputed that on September 6, 2016, the crew that was to cleanup
along the east outer walkway of the 62/162 conveyor gallery was reinstructed concerning fall
protection specifically for that job (Tr. 467, 483-85). Mr. Lehtinen instructed the crew on how to
be tied off the entire time they were along the outer walkway (Tr. 80, 485, 493). Mr. Lehtinen
instructed them to affix lanyards in sequence as each descended the walkway (Tr. 54, 485, 486-
87). That way, when a crew member would reach the end of the first lanyard, he would affix
another lanyard, unclip from the first and clip to the second (Tr. 485, 486-87). He would then
continue the process as they descended the walkway and would reverse the process to walk back
up (Tr. 485). Mr. Lehtinen also instructed them to tie off to structural steel supports (Tr. 486).
The next day the crew went back to the 62/162 to resume their work there (Tr. 488-89). The
ALJ relied on a finding that the employees were not always tied off, but failed to consider the
efforts to fully communicate and instruct on this requirement.

The ALJ also relied on the purported complaints about the walkway by Northshore
employees. Those complaints were based on hearsay testimony that was vague, non-specific as
to time. and. of course, not subject to cross examination (Tr. 103-4, 116-22). It is unclear
whether such complaints were about the center walkway before it was repaired with steel plates

or whether such complaints involved the narrowness of the outer walkways (Tr. 167). Mr.


Northshore Mining restrict access to these walkways as they are not safe for
personnel to be using until a repair has been completed. By not restricting access
to the outer walkways by barricading or posting signs to alert miners to the
compromised condition of the floors of the outer walkways after receiving the
slab assessment report, Northshore mine engaged in aggravated conduct
constituting more than ordinary negligence. This violation is an unwarrantable
failure to comply with a mandatory standard.

Section 56.20011 was cited five times in two years at mine 2100831 (5 to the
operator, 0 to a contractor).

Order No. 8897220 alleges a violation of 30 C.F.R. §56.11002 as follows:

The elevated 62/162 conveyor ramp as not of substantial construction nor was it
being maintained in good condition resulting in the failure of the ramp at 08:40 on
September 7, 2016. The floor and underlying structure failed, exposing a miner
assigned to work in the area to a fall of approximately 50 feet to the dirt ground
under the galley [sic]. On 11-24-2014 Jason Betzler Hot Side Planner generated
work order #00557244 noting the floor of the 62/162 galley had settled 4 inch’s
|sic] compared to the concrete in the center of the galley [sic], also the conveyor
frame had also settled, the areas where the concrete had settled where [sic] all the
way up the ramp. In March and May of 2015, Krech & Ojard Engineering was on
site to conduct a slab assessment of the 62/162 conveyor galley. On June 1, 2015,
Daniel Scamehorn Senior Staff Structural Mechanical Infa-Basin & Project
Engineer received the slab assessment report from Krech & Ojard and on June 3,
2015 the report was sent by Rodger Peterson Hot Side Manager and to Matthew
Zimmer Hot Side Section Manager Management specifically noting from the slab
assessment report that the outer walk ways without steel plate reinforcing cannot
be found to be structurally adequate for use and recommended that Northshore
Mining restrict access to those walkways as they are not safe for personnel to be
using until a repair has been completed. Northshore Mine engaged in aggravated
conduct constituting more than ordinary negligence in that Northshore mine
continued to have labors [sic] on the outer walkways cleaning and maintenance
workers on the outer walk ways when changing conveyor idlers without repairs
having been completion [sic] on the outer walkways up until the 62/162 ramp
failed on 09-07-2016. This violation is an unwarrantable failure to comply with a
mandatory standard.

This Order was assessed by MSHA as a flagrant violation. Individual penalties against
Mr. Zimmer and Mr. Peterson were also assessed with respect to this Order.
ALJ’s Decision
The ALJ affirmed a violation of 30 C.F.R. § 56.11002 with respect to Order No.

8897220 and further affirmed the unwarrantable, reckless disregard and S&S findings and

6


who would be impacted by the condition of the outer walkways. Again, the ALJ did not discuss
this mitigating circumstance and this also compels review.

After June 1, 2015, Mr, Peterson and his subordinates were responsible for implementing
the means of protection for accessing the outer walkways. They did so. Mr. Peterson conveyed
the fall protection requirement to the supervisors who worked for him (Tr. 391-92, 427, 450-51).
They, in turn, ensured that the maintenance technicians abided by the policy (Tr. 393, 427-28,
451-52). The requirement was reiterated in work orders (RX-E, RX-F). Mr. Gornik, who
worked under Mr. Peterson, made sure that the cleanup crews were aware of the requirement of
fall protection and they used it (Tr. 467-71). Therefore, the only involvement of Mr. Peterson
was carrying out the additional safety measures put in place.

There is no evidence that either Mr. Peterson or Mr. Zimmer had any authority to take
any action beyond what they did. They were not in position to make major repairs or cause them
to occur, The ALJ simply failed to consider that in her decision. The issue when first detected
was referred to engineering not to Mr. Zimmer and Mr. Peterson.

Mr, Zimmer and Mr. Peterson were informed that access to the outer walkways could
occur with protective measures. Mr. Zimmer and Mr. Peterson carried out the protective
measures that were put in place. Importantly, those measures were deemed appropriate by the
report’s author, Mr. Leow, based on his observations of the walkways (Tr. 371). Under such
circumstances, Section 110(c) liability is not be proper and review is appropriate.

CONCLUSION

Based on the foregoing, it is requested that review be granted.

22


JACKSONKELLY 1c

THREE GATEWAY CENTER # SUITE 1500 + 401 LIBERTY AVE + PITTSBURGH, PENNSYLVANIA 15222 * TELEPHONE: 412-434-8055 « TELECOPIER: 412-434-8062
worw jacksonkelly com

March 14, 2019

Via Electronic Filing

Lisa M. Boyd, Executive Director

Federal Mine Safety & Health
Review Commission

1331 Pennsylvania Avenue, NW

Suite 520N

Washington, D.C. 20004-1710

Re: Secretary of Labor (MSHA) v. Northshore Mining Company
Docket Nos. LAKE 2017-224 and 248
Secretary of Labor (MSHA) v. Roger Peterson, employed by
Northshore Mining Company
Docket No. LAKE 2018-146
Secretary of Labor (MSHA) v. Matthew Zimmer, employed by
Northshore Mining Company
Docket No. LAKE 2018-141

Dear Ms. Boyd:

Enclosed for filing is the Petition for Discretionary Review on behalf of Northshore
Mining Company, Roger Peterson and Matthew Zimmer regarding the above-referenced
matters.

Thank you for your courtesy and cooperation in this matter.
Very truly yours,

s/R. Henry Moore

R. Henry Moore
RHM:Ims
Ene.
ec: Barbara M. Villalobos, Esq.

Ali A. Beydoun, Esq.
4824-1450-1515.v1

Bridgepore. WY * Chi
Denver, CO + Evansvil

WV + Martinsburg. WWV + Morgantown, WV * Wheeling. WV
Jexington, KY * Akron, OH * Piesburgh, PA * Washington, DC



cracks, resulting in a fall. But most importantly, when the walkway heaves or gives way, as it
did for King, there is a real danger of falling through the walkway to the ground below. Falling
through a hole from 50 feet to a concrete surface below would lead to a fatal injury. In the event
a miner only put a Jeg through the hole, a serious injury would still likely occur. Similarly, if a
miner is tied off when the floor gives way, a hole opens up. or he trips, a serious injury can
occur. A safety line may stop the miner from falling 50 feet, but it can lead to other hazards.
such as being jostled or yanked by the lanyard resulting in back and neck injuries. A miner who
is tied off could also strike his head, hit equipment below, or be hit by falling cement. The
presence of the fall protection may lessen the injury in some circumstances, but does not remove
the likelihood of a serious injury. Further, the miners agreed that even if they used fall
protection, there were not always tied off. Therefore. I find that it is reasonably likely that an
accident would occur, and result in a serious, if not fatal, injury. The violation is therefore,
significant and substantial.

Negligence

The Secretary alleges that Citation No. 8897219 involved reckless disregard on the part
of the operator and cites to the same arguments as those for the negligence in the violation cited
above in Order No. 8897220. The arguments include the miners’ complaints about the condition
of the walkway and the subsequent engineering report that indicated that the walkway was not
safe for use. The Secretary argues that both Gornik and Lehtinen say they did not know about
the condition of the walkway, but were the persons assigned to direct the contractors. They were
told by Zimmer to have the contractors use fall protection, but only for purposes of protecting
against a fall on the pellets. Both Zimmer and Peterson failed to consider the serious
consequences of their actions. Northshore, too, makes the same arguments as to the negligence
of the order discussed above. That is, that the mine required fall protection and therefore made
some effort to protect the safety of miners. In addition, the mine argues that the managers
understood from Leow that the condition may not have been as bad as the report suggested and
were not negligent in relying on those representations.

A reasonably prudent miner would have understood that telling miners to wear fall
protection was not enough. Instead signs should have been posted advising miners about the
condition of the walkway and, if the fall protection was required, to have a sign advising of the
requirement. The primary support for a finding of reckless disregard is the fact that the mine
commissioned the 2015 KOA engineering report to address concerns about the condition of the
conveyor walkway. The resulting report from KOA found that the walkway was not safe for
personnel to use and access should be restricted. The mine, through its engineers and two of its
managers, knew of the poor and dangerous condition of the walkway, yet failed to put up any
warning or barricade to at least limit access to the area until repairs could be completed. The
area was open and available to anyone who was in the conveyor area, and it could have been
accessed without any warning. The mine knew of the problem with the east walkway but took
no steps to limit access and those actions demonstrate an indifference to a known violation. The
managers put the miners in a situation that posed a significant risk to safety. Therefore, I agree
that the violation is the result of reckless disregard on the part of the mine.

ie)
i)


Mr. Zimmer authorized, in which he said “[vJerify the floor is safe on the east side of the
conveyor. Roger [Peterson] says that fall protection is required.” (ALJ 27). She also relied on
the fact that the contractors testified that they were not told of the condition of the floor, only that
they needed fall protection to avoid falling on the pellets, and the fact that Mr. Zimmer and Mr.
Peterson received copies of the KOA report, along with an email from Mr. Scamehorn alerting
them to the structural issues with the walkways and suggesting that they “restrict” access.

Similarly, the ALJ found that Mr. Zimmer and Mr. Peterson failed to act on the basis of
the walkway information to protect worker safety and health because they spoke with Mr.
Scamehorn and decided to put the walkways on a list for later repair. She noted that Mr. Zimmer
and Mr. Peterson agreed to require fall protection and instructed the supervisors regarding the
need for fall protection on the outer walkways (ALJ 27). But she found that fall protection was
an inadequate solution to address the violative condition here. According to the ALJ, mine
managers who are trained on the requirements of the regulations, and on the importance of safety
and health, should have known that the conveyor walkways must be maintained in good
condition or, alternatively, restricted from access appropriately.

DISCUSSION

Ls ORDER NO. 8897220

A, The ALJ’s Finding of a Violation Was Not Supported by Substantial
Evidence

Order No. 8897220 alleges a violation of 30 C.F.R. § 56.11002, which addresses
“Handrails and Toeboards” and requires that:

Crossovers, elevated walkways, elevated ramps, and stairways shall be of
substantial construction provided with handrails, and maintained in good
condition. Where necessary, toeboards shall be provided.

30 C.F.R. § 56.11002. To the degree that the standard contains a requirement independent of

handrails and toeboards, one Administrative Law Judge held that “[t]he regulatory mandate to

9


requirement of fall protection was a mitigating factor (ALJ 14). To support this finding, she
relied on a finding that the concrete continued to deteriorate (ALJ 15). She relied on the length
of time the condition existed between the report and the incident, and did not mention that the
facility was idled for approximately half that period (ALJ 15). She found that the condition was
extensive despite the limited work that had to be done for the outer walkways (ALJ 15).

She relied on the Krech Ojard report and unspecified complaints of miners to find that the
operator was on notice. She also found that the violation created a serious safety hazard from
stumbling, walking on pellets and falling through the walkway and thus a “high degree of
danger” (ALJ 16). She found the condition was obvious and that the operator knew of the
condition but that it was not obvious to miners cleaning the walkway (ALJ 17). The ALJ
rejected the flagrant allegation because Northshore made efforts to protect the miners (ALJ 19-
20).

She found a violation of Section 56.20011 relative to Citation No. 8897219 (ALJ 20). In
so finding, she relied in part on the fact that Mr. Lehtinen learned of the condition of the
walkway but did not travel the walkways (ALJ 21). She relied on hearsay testimony of miners
that they did not know the walkway was in bad condition but relied on the fact that they avoided
it because it was in bad condition (ALJ 21). She further found that the condition was S&S and
resulted from an unwarrantable failure (ALJ 21). Her analysis was similar to that concerning
Order No. 8897220 (ALJ 23-24).

The ALJ also imposed individual liability on Mr. Zimmer and Mr. Peterson. The ALJ
here found that there was sufficient evidence to demonstrate that both Mr. Zimmer and Mr.
Peterson, acting as agents of the mine, knew that the walkways of the 62/162 gallery were not of

substantial construction or maintained in good condition. She relied upon a work order which


reasonably could have been expected to cause, death or serious
bodily injury.

30 U.S.C. § 820(b)(2). Thus, in order to establish that a violation was flagrant, the Secretary
must prove that:

(1) there was a condition that constituted a violation of a
mandatory health or safety standard, (2) the violation was “known”
by the operator; (3) the violation either (a) substantially caused
death or serious bodily injury, or (b) reasonably could have been
expected to cause death or serious bodily injury; (4) there was a
failure on the part of the operator to make reasonable efforts to
eliminate the violation; and (5) that failure was either “reckless” or
“repeated.”

Am. Coal Co., 38 FMSHRC 2062, 2066-67 (Aug. 2016). As discussed below, | find that the
Secretary has not established the elements of a flagrant violation.

The Secretary argues that the violation was flagrant because Northshore management
knew of the condition of the walkway, failed to make reasonable efforts to eliminate a known
violation, and displayed reckless disregard toward miners. Scamehorn, Peterson, and Zimmer
were on notice of the violation based upon the 2015 engineering report they received from KOA,
but ignored the report's findings, as well as the miners” concerns about the walkways.
Northshore takes the position that the violation is not flagrant because the condition of the
walkway was not the cause of the accident and that there was no injury here. The mine also
asserts that the condition of the walkway would not lead to a serious injury because the miners
wore fall protection.

As set forth above, the Secretary has established that a violation of a mandatory standard
occurred. Next, the Secretary has shown that the violation was known by the operator. The
discussion regarding the unwarrantable failure established that there is substantial evidence to
demonstrate that the mine knew that the outer walkways were in a dangerous and deteriorating
condition, in violation of 30 C.F.R. § 56.11002. Work orders dating back to 2013 detail
concerns about cracks, debonding, and spalling of concrete on the 62/162 walkways. The June
2015 KOA report warmed the mine that the load bearing capacity of the outer walkways could
not be determined and that access to the walkways should therefore be restricted. While the
center walkway had, at some point, been reinforced with steel plates, the outer walkways had not
received the same repairs. Mine managers, employees, and engineers all testified that they were
aware that the east walkway was not being maintained in a safe condition. Therefore, the
knowledge required for the second element of the flagrant assessment is met.

The third element of the flagrant discussion identified in 4m. Coal Co., 38 FMSHRC at
2066-67, requires the Secretary to show that the violation either substantially caused or
reasonably could have been expected to cause death or serious bodily injury. This part of the
analysis is similar to the third and fourth prongs of the Marhies test, which is used to evaluate
whether a violation is properly designated as significant and substantial. As discussed above, the

18


Following the examination of the walkway, an engineer-in-training from KOA prepared
the written report that was submitted to the mine. The report states that Leow observed damage
over large areas of the walkway slab underside. which included spalled concrete, delaminated
concrete, debonded reinforcement, and corroded reinforcement. Sec’y Ex. 12. Leow clarified at
hearing that this description referred to the perlite panels forming the underside of the walkway
and did not refer to the concrete topping. Tr. 366. The damage was observed on the outer
walkways but it was not visible on the center walkway because of the steel plate reinforcement
on that walkway’s underside. The report further states that the topping slab was in poor
condition with large surface cracks and heaving, and that it was in need of replacement. The
engineers believed that the damage was caused by the freeze-thaw cycle and water seeping into
the space between the perlite and the concrete. The report also includes an evaluation of the load
rating for the center walkway. KOA found that the perlite slabs, as well as the concrete, were
compromised and provided little to no structural support. Thus, the report found that the center
walkway was “potentially reliant upon the structural capacity of the steel plate reinforcing
alone.” With respect to the outer walkways, the report found that the concrete was damaged but
lacked the steel panels. The report states that without steel plate reinforcing, the outer walkways
“may not contain adequate structural support for the use of these walkway areas.” Sec’y Ex. 12.
Therefore, the outer walkways “cannot be found to be structurally adequate for use.” Jd. The
report concludes with the recommendation that Northshore “restrict access to these [outer]
walkways as they are not safe for personnel to be using until a repair has been completed.” /d.
KOA also recommended that the company prohibit use of a heavy equipment cart on the center
walkway, and limit the use of that walkway to personnel performing minor maintenance
activities due to the tripping hazard from cracked concrete. The report recommends that
Northshore replace the walkway slabs.

After receiving the report, Scamehorn discussed the findings with Leow, the structural
engineer from KOA. Based upon their conversation, Scamehom supposed that the condition of
the gallery was not as severe as the report had indicated. Scamehorn believed that Leow’s main
concern with the gallery was the cracking on the top concrete slab of the outer walkways, which
created the potential for a “very finite failure,” meaning a small foot hole, if the cracks were to
align a certain way. Tr. 328-29. Leow gave the impression that there was a potential for a small
hole, but not a hole large enough for a person to fall through, nor did he indicate that it was
necessary to completely prohibit access to the outer walkways. Scamehorn understood that
access to the outer walkways should be limited to maintenance activities, with no casual traffic
permitted. Tr. 330.

Scamehorn conveyed the KOA report, along with information from the conversation with
Leow, to Matthew Zimmer and Roger Peterson, the section managers of hot side maintenance
and operations. Scamehorn explained that the potential issue with the walkways was a finite
failure in the form of a foot hole. While there was cracking visible, it was nothing that he
believed formed any present concern. Based on that information, the three decided to require fall
protection on the outer walkways to mitigate any risk of a person falling through to the ground.
Scamehorn said that he believed it to be a conservative approach because there was no actual risk
of a person falling through to the ground. The three did not discuss installing warning signs or
barriers on the outer walkways.


Unwarrantable Failure

The unwarrantable failure terminology is taken from Section 104(d) of the Act, 30 U.S.C.
§ 814(d). The Commission has explained that unwarrantable failure is “aggravated conduct
constituting more than ordinary negligence. [It] is characterized by conduct described as
‘reckless disregard,” ‘intentional misconduct,” ‘indifference,’ or a ‘serious lack of reasonable
care."” Consol. Coal Co., 22 FMSHRC at 353 (citing Emery, 9 FMSHRC at 2001-04) (citations
omitted). In determining whether a violation is an unwarrantable failure, the Commission has
instructed its judges to consider all of the relevant facts and circumstances in the case and
determine whether there are any aggravating or mitigating factors. JO Coal Co., 31 FMSHRC at
1352; see also Consol., 22 FMSHRC at 353. Both the Secretary and Northshore refer to the
arguments made when discussing the unwarrantable nature of the violation in Order No.
8897720. Many of those arguments apply here.

Length of time that the violation has existed. The problem with the outer walkways had
existed for several years, at least from the time in June 2015 when the KOA report had been
completed. As a result of the report, the mine was made aware of the deteriorating condition of
the walkway in 2015 and nothing was done to correct the condition. The walkway continued to
crack and deteriorate up until the accident on September 7, 2016. For more than a year, the mine
failed to put any barriers in place to prohibit access, or post any warning signs to prevent access,
to warn of the dangerous condition, or to provide notice of a requirement to wear fall protection.
The length of time figures prominently in the evaluation of the unwarrantable failure designation.

Extent of the violative condition. The extent of the violative condition included the entire
walkway, on both the east and west side of the conveyor, each extending about 300 feet. No
barriers or warnings were used at either of the two walkways, leaving it accessible to anyone.
The entire area was open to use by any person at the mine. Therefore, the violative condition
was extensive.

Whether the operator has been placed on notice that greater efforts were necessary for
compliance. \n this case, the mine was put on notice of the defective walkway, first by
complaints by miners and then by the KOA engineering report in June 2015, Secretary's Exhibit
12. The report indicated that the load bearing capability of the outer walkway could not be
determined. The KOA report indicated that the mine should restrict access to the outer
walkways, and yet no barriers or warnings were put in place following that notice. The mine did
determine that fall protection should be used on the outer walkways, but again did not post a
warning or notice in that regard.

Operator's efforts in abating the violative condition. The only effort made to address the
deteriorating walkway and its unsafe condition was to tell miners to use a safety harness when
accessing the outer walkways. Although mine management may have told workers at the
location to use safety harnesses, they did not post a notice explaining the requirement. Nor did
mine management place any barriers to restrict access to the walkways as suggested by the
report. Therefore, | find that no efforts were made to abate the condition.

23


As a result of the accident, King filed a hazard complaint with MSHA on September 8,
2016, and Inspector Terrance Norman was assigned to investigate. His investigation resulted in
the issuance of the citation and order at issue here, and was the basis for the 1 10(c) investigation
regarding Peterson and Zimmer. Norman has been a mine inspector since 2014. and previously
worked for 20 years in the mining industry. His investigation into the hazard complaint and the
incident involving King lasted approximately eight weeks. He conducted interviews with
Northshore employees, management, contract laborers, the contract safety director, and the
owner of the contracting company. Tr. 98. He also worked with a special investigator from
MSHA and an engineer from the MSHA technical support division regarding the safety of the
east walkway.

Norman determined that concerns about the walkway had been ongoing for several years.
Daniel Scamehorn, a structural engineer with Northshore, testified that he first learned of a
problem with the 62/162 gallery in 2013. An engineer supervised by Scamehorn submitted a
work order in October 2013 reporting that concrete panels on the underside of the gallery had
been falling. The work order mentioned that steel plates had been installed sometime earlier
under the center walkway, but that the two outer walkways had not been reinforced and thus
needed repair. Sec’y Ex. 18. Scamehorm testified that around the same time, the company had to
do repairs on another conveyor at the mine, the No. 2, which had a similar problem with concrete
falling from the bottom of the conveyor. The company prioritized the work on the No. 2
conveyor and put the repairs for the 62/162 on a project list to be considered in the future. Tr.
339.

In November 2014, another work order concerning a walkway in the 62/162 gallery was
initiated by Jason Betzler, then the hot side maintenance planner at the mine. Betzler noticed
cracking in the concrete and observed that in places along the walkway, the concrete had settled
up to four inches. Resp. Ex. A. Betzler testified at hearing that the work order was in reference
to the center walkway and did not concern the outer walkways. Upon receiving the work order,
Scamehorm reviewed the maintenance records for the 62/162 gallery, and learned that steel plates
had been installed under the center walkway in 2010. Scamehom also examined the center
walkway himself, and observed that it was cracked and that the edges of the walkway were
settling. Scamehorn believed that the middle of the walkway was being heaved upward by
material trapped by the steel plates. He did not examine the outer walkways. Subsequently,
Scamehorn contacted the engineering firm Krech Ojard and Associates, Inc. (“KOA”) to contract
with the firm to evaluate the condition of the 62/162 conveyor walkway. An engineer from
KOA visited the mine and conducted a visual inspection of the conveyor gallery. As a result, a
report was prepared and sent to Scamehorn in June 2015. Tr. 324-25: Sec’y Ex. 12.

The KOA report was introduced as Secretary’s Exhibit 12. As part of their work, KOA
engineers reviewed structural design documents for the gallery, and learned that the center and
outer walkways were constructed of 2 5/8 inch perlite panels reinforced with wire mesh fabric
anda 1 1/2 inch plain concrete topping. KOA structural engineer Patrick Leow visited the
gallery to conduct the evaluation for KOA. He visually inspected the gallery from the ground
level inside and outside the gallery, then walked the center and east walkways and a portion of
the west walkway. He observed cracking and heaving on the outer walkways. Tr. 367.


One of the cleanup crew members, Evander King, was on the east outer walkway at the
time of the failure (Tr. 58). Mr. King was wearing fall protection, as instructed (Tr. 59). Mr.
King was on a portion of the walkway that was not disturbed by the failure (Tr. 78). There was a
significant pile of iron ore pellets that had been washed down in the area (RX-MS).

A subsequent analysis of the failed beam by Michael Osmundson, a metallurgist,
indicated that a crack had existed at the point of failure on the diagonal for an extended period of
time (Tr. 501; RX-K). The failure occurred due to a combination of the size of the crack,
temperature and the stress on the structure (Tr. 505). It was determined that the beam had been
struck by a haul truck in 1994 (Tr. 501). It is believed that the crack developed at that time and
existed unbeknownst to Northshore ever since.

During remedial efforts that were overseen by Mr. Zimmer and an engineer from Krech
Ojard, David Franseen, the concrete walkways were dismantled and replaced (Tr. 532). The
concrete walkway came out in long unbroken segments and proved to be exceedingly difficult to
break (Tr. 399, 533).

The incident was investigated by MSHA Inspector Terrance Norman and a civil engineer
from MSHA Tech Support, Michael Superfesky. Mr. Norman issued two citations.

Citation No. 8897219 alleges a violation of 30 C.F.R. §56.20011 as follows:

The East and West side outer walk ways of the 62/162 conveyor galley were not

barricaded or posted to alert miners to the compromised condition of the floors to

prevent miners from accessing the outer walkways. On June 1, 2015, North Shore

mine received a Slab Assessment report on the 62/162 galley [sic] that was

conducted by Krech & Ojard Engineering stating the outer walkways without

steel plate reinforcing cannot be found to be structurally adequate for use, and

recommended Northshore Mining restrict access to those walkways until repairs

are completed. This report was sent [b]y Daniel Scamehorn Senior Staff

Structural Mechanical Infa-Basin & Project Engineer to Rodger Peterson, Hot

Side Manager and to Matthew Zimmer, Hot Side Section Manager Management

on June 3, 2015, specifically noting the portion of the report the outer walkways
cannot be found to be structurally adequate or use, it recommended that


The ALJ applied that analysis but as discussed above with respect to reckless disregard,
Northshore’s conduct was not the product of reckless disregard and the analysis is not supported
by substantial evidence primarily because of the steps Northshore took and their understanding
of what the level of hazard was. While the ALJ might reject Mr. Leow’s testimony about his
report, there appears to be little dispute about the information that was conveyed to Northshore
and the fact that it was the understanding of Mr. Scamehorn, Mr. Peterson and Mr. Zimmer that
fall protection could be used as an interim measure. After the evaluation by Mr. Leow,
Northshore implemented what it believed were effective remedial measures to address what was
known about the outer walkways. The walkways were in useable condition, as demonstrated by
its post-accident condition. Nor can there be a dispute as to the actual condition of the concrete
when it was dismantled. Mr. Norman and Mr. Superfesky could not testify to that. There was no
significant hazard of falling or injury. The condition of the visible perlite panels was not, in fact,
evidence that the walkways were unsafe.’ Review of the ALJ°s decision as to unwarrantable
failure is appropriate.

IIL: 110(¢) ALLEGATION — NO INDIVIDUAL PENALTIES ARE PROPER

Under Section 110(c) of the Mine Act, individual corporate agents can be held personally
liable if they “knowingly authorized, ordered or carried out [a] violation” of a mandatory
standard. To establish liability under Section 110(c), the Secretary must prove that the individual

knew or had reason to know of the violative condition. See Freeman United Coal Mining Co. v.

FMSHRC, 108 F.3d 358, 364 (D.C. Cir. 1997); Target Industries, Inc., 23 FMSHRC 945, 963
(Rev. Comm. Sept. 2001). According to the Review Commission, “an individual acts knowingly

% To the extent the ALJ relies on the visible condition of the perlite (and not the actual
concrete), MSHA inspectors such as Mr. Norman, would have been able to see the condition
from the ground below the walkway and did not identify it as a problem prior to September 7.
This would argue against reliance on the appearance of the perlite supporting an unwarrantable
designation.

19


its duty of care, the judge must consider “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry. the relevant
facts, and the protective purpose of the regulation.” Newrown, 38 FMSHRC at 2047: Brody
Mining, LLC. 37 FMSHRC1687. 1702 (Aug. 2015): U.S. Steel Corp., 6 FMSHRC 1908, 1910
(Aug. 1984).

The Mine Act places primary responsibility for maintaining safe and healthful working
conditions in mines on operators, and they are thus expected to set an example for miners
working under their direction. Newtown, 38 FMSHRC at 2047; Wilmot Mining Co., 9 FMSHRC
684, 688 (Apr. 1987); see also 30 U.S.C. § 801(e). “Such responsibility not only affirms
management's commitment to safety but also, because of the authority of the manager.
discourages other personnel from exercising less than reasonable care.” Wilmot, 9 FMSHRC at
688.

Reckless disregard is “the closing of the eyes to or deliberate indifference toward the
requirements of a mandatory safety standard. which standard the (mine) should have known and
have reason to know at the time of the violation.” United States v. Jones, 735 F.2d 785. 790 (4th
Cir. 1984). The Commission has recognized that negligence is properly characterized as reckless
disregard where a supervisor directs a miner into a situation knowing that the situation poses an
immediate and appreciable risk to the safety of that miner. Lehigh Anthracite Coal, 40
FMSHRC 273, 283-84 (Aug. 2018).

The Secretary alleges that the violation involved reckless disregard for the safety of
miners. The Secretary bases his argument on the fact that Scamehorn understood there could be
a localized failure of the walkway and that both Peterson and Zimmer, agents of the operator,
were aware of the deteriorated condition of the walkway and took no reasonable steps to correct
the condition. Northshore argues that the negligence was lower because the mine made
reasonable efforts to address the safety hazard by requiring miners to wear fall protection. The
Secretary believes the fall protection measures were “wholly inadequate,” and did not mitigate
the negligence in this case.

Northshore received the engineering report from KOA in June 2015, after it had received
a number of complaints about the condition of the outer walkways on the 62/162 conveyor.
There was no indication that anything was done to shore up or otherwise repair the aging outer
walkways. Steel reinforcement had been installed to support the center walkway, but the outer
walkways did not receive such reinforcement. The center walkway was the primary access to the
conveyor and was used most often. Nonetheless, miners were required to use the east outer
walkway and to work on that walkway.

The mine argues that the miners were directed to use fall protection, that access to the
walkway was restricted, and that employees had been trained on the use of the fall protection,
thereby mitigating the negligence. However. nothing was done to directly correct the condition
of the walkway or make it safer to use. Instead, it continued to deteriorate. Further, for miners
who were not familiar with the area, there was no sign posted to indicate that fall protection was
required. The miners were often not tied off when doing maintenance or changing the rollers,
and on the day of the accident, the worker hosing down the pellets was not continually tied off.

13


Inspector Norman indicated that the mine was reckless in continuing to allow access to the east
walkway, even if miners were tied off. In his view. fall protection may have been discussed at
one time. but it was not made clear to the miners or the contractors how and when to tie off.
Management was aware of the condition of the walkway, yet made no effort to correct or
maintain the walkway in a safe condition.

Failure to maintain the walkway resulted in the walkway crumbling and falling away
while workers were on it. On the day of the accident. the contract miners were using hoses to
wash the pellets down the 300 feet of the outer walkway ramp. and in doing so, the pellets built
up in some locations, causing a heavy load on the walkway. The condition of the walkway was
such that it could not withstand the weight of the pellets as they washed down. Mine
management knew of the condition of the area yet demonstrated indifference to the violation,
thereby placing the contract miners in a hazardous position. | credit Superfesky’s testimony that
the condition of the walkway was the primary reason for its failure. and find that the failure of
the mine to correct the condition and maintain the walkway in good condition was the result of
reckless disregard.

Unwarrantable Failure

The Secretary alleges that the violation was the result of an unwarrantable failure to
comply with the regulation.

The unwarrantable failure terminology is taken from Section 104(d) of the Act, 30 U.S.C.
§ 814(d). The Commission has explained that unwarrantable failure is “aggravated conduct
constituting more than ordinary negligence. [lt] is characterized by conduct described as
‘reckless disregard,” ‘intentional misconduct,” ‘indifference,’ or a “serious lack of reasonable
care."” Consol. Coal Co., 22 FMSHRC 340, 353 (Mar. 2007) (citing Emery Mining Corp. 9
FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted). In determining whether a violation is
an unwarrantable failure, the Commission has instructed its judges to consider all of the relevant
facts and circumstances in the case and determine whether there are any aggravating or
mitigating factors. Jd. Aggravating factors to be considered include the length of time that the
violation has existed, the extent of the violative condition, whether the operator has been placed
on notice that greater efforts were necessary for compliance, the operator's efforts in abating the
violative condition, whether the violation was obvious or posed a high degree of danger. and the
operator’s knowledge of the existence of the violation. JO Coal Co.. 31 FMSHRC 1346, 1352
(Dec. 2009); see also Consol., 22 FMSHRC at 353.

The Secretary submits that the violation was extensive, that both outer walkways were
dangerously deteriorated, and because it was unknown when a failure would occur, miners were
exposed to a hazard for the entire length of both walkways. Miners doing work over the
previous year were exposed to the same hazard as those in September 2016. The amount of time
that the mine knew of the hazard is significant, along with the obviousness of the condition.
Northshore argues that the violation was not an unwarrantable failure to comply because the
mine took what it viewed as effective remedial measures to address a known condition. The
walkways were in usable condition and there was no significant hazard.


I. ORDER

Respondent. Northshore Mining, is hereby ORDERED to pay the Secretary of Labor the
sum of $120,000.00 within 30 days of the date of this decision. Matthew Zimmer is ordered to
pay $4,000.00, and Roger Peterson is ordered to pay $4,000.00 as an agent of the operator within
30 days of the date of this decision.

Admin\strative Law Judge

Distribution: (U.S. Certified First Class Mail)

Barbara M. Villalobos, U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn
Street, 8" Floor, Chicago, IL 60604

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


DECISION AND ORDER

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

R. Henry Moore, Arthur M. Wolfson, Jackson Kelly PLLC, Pittsburgh,
Pennsylvania, for Respondent.

Before: Judge Miller

These cases are before me upon 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, 30 U.S.C. § 815(d) (“the Act”). These dockets involve a citation and an order issued to
Northshore Mining Company (“Northshore”) pursuant to Section 104(d) of the Act with
originally proposed penalties totaling $199,600.00. The alleged violations involve a failure to
maintain a walkway in good condition and a failure to barricade the walkway from access by
miners. MSHA also seeks to impose personal liability under section 110(c) of the Mine Act, 30
U.S.C. § 820(c), against two section managers, Matthew Zimmer and Roger Peterson, for the
failure to maintain the walkway. The parties presented testimony and evidence regarding the
citations and orders at a hearing held in Duluth, Minnesota. Based upon the parties’ stipulations,
my review of the entire record, my observation of the demeanors of the witnesses, and
consideration of the parties’ legal arguments, I make the following findings and order.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Northshore Mining Company is an iron ore mine located in Lake County, Minnesota.
The parties have stipulated that Northshore is an “operator” as defined in Section 3(d) of the
Mine Act, 30 U.S.C. § 803(d), and is subject to the jurisdiction of the Commission. Jt. Stips. {f]
2-4,

This case involves an outer east walkway of the 62/162 conveyor gallery at the mine’s
pellet processing plant in Silver Bay, Minnesota. The facility processes iron ore pellets for use in
steel production. The conveyor gallery is a covered gallery with two conveyors, a primary
walkway between the two conveyors, and an outer walkway on each side. The citations here
involve the east outer walkway.

The citations at issue stem from an accident at the mine on September 7, 2016 that
resulted in the failure of the elevated east outer walkway. The accident involved a contract
miner, Evander King, who testified at hearing on behalf of the Secretary. King was employed in
2016 by VanHouse Construction as a contractor at the Northshore processing facility. He
primarily performed clean-up work at the mine with a number of other contractors. He and the
other contractors were supervised by John Gornik, a Northshore employee responsible for
coordinating the day crew, and Dennis Lehtinen, a senior operations technician employed by
Northshore. Tr. 47, 61, 480.


AND NOW come Northshore Mining Company, Matthew Zimmer and Roger Peterson,
and request that the Commission review the decision of the Administrative Law Judge (“ALJ”)
dated February 13, 2019. A copy of the ALJ’s decision is attached to this petition.

STATEMENT OF ISSUES

The issues for which review is sought are as follows:

Docket No. 2017-248

1. Whether the ALJ erred in finding a violation of 30 C.F.R. § 56.11002 as
alleged in Order No, 8897220 when it was not supported by substantial evidence.

2s If a violation was properly found with respect to Order No. 8897220,
whether the ALJ erred in finding that it is properly designated an unwarrantable failure
when it was not supported by substantial evidence.

3. If a violation was properly found with respect to Order No. 8897220,
whether the ALJ erred in finding the negligence to be reckless disregard when such
finding was not supported by substantial evidence.

Docket No. 2017-224

I Whether the ALJ erred in finding a violation of 30 C.F.R. § 56.20011 in
Citation No. 8897219 because it was not supported by substantial evidence.

2. If a violation was properly found with respect to Citation No. 8897219,
whether the ALJ erred in finding that a violation with respect to Citation No. 8897219
was properly designated an unwarrantable failure when it was not supported by

substantial evidence.

de If a violation was properly found with respect to Citation No. 8897219,
whether the ALJ erred in finding the negligence to be reckless disregard when such
finding was not supported by substantial evidence.

Docket No. 2018-141

1. Whether the ALJ erred in finding that Mr. Zimmer knowingly authorized,
ordered or carried out a violation as described in Order No. 8897220 when it was not
supported by substantial evidence.

2. Whether the ALJ erred in not addressing the 16-month delay in assessing
the penalty against Mr. Zimmer.


or falling through the floor onto the roadway 50 feet below. Hence, the Secretary has
demonstrated that the area was a safety hazard.

Next the Secretary has demonstrated that the hazard was not obvious to all miners and
particularly the contractors working at the mine. The contractors were not told about the
condition of the walkway, except to say that fall protection was needed to avoid the fall hazard of
walking on the pellets. King explained that the condition of the walkway was not obvious
because it was covered in mud and pellets and he could not see the surface. The contractors and
miners who did not routinely use the walkway would not be aware of the hazardous condition of
the walkway because it could not be seen. Even miners who worked in the area claimed that
they did not know that the walkway was in bad condition. For example, Lehtinen explained that
he learned from Gornik that the floor of the walkway was bad when they were discussing the use
of fall protection by the contractors in September 2016. Therefore, it was not obvious to him
that the cement floor beneath the pellets was a hazard. For miners or contractors who did not
routinely work in the area, there was no indication of a hazard or of a requirement to use fall
protection. Given that the walkway created a safety hazard, and that hazard was not obvious,
barricades or warning signs were required at either end of both outer walkways. I find that the
violation, as alleged, has been shown.

Significant and Substantial

The Secretary alleges that Citation No. 8897219 was highly likely to cause a fatal injury
and was significant and substantial. I have found that there is a violation and I find further that
the standard violated is meant to protect miners from entering unsafe areas where the hazard is
not obvious so that miners can avoid the area or take other precautions. The KOA report,
Secretary's Exhibit 12, includes a statement that the outer walkways of the conveyor area are not
safe for personnel to use until repaired. The conclusion of the report includes “the deteriorated
condition of the conveyor walkway slabs is significant... access to the outer walkway slabs be
restricted.” Thus, the outer walkways were compromised and the condition created a hazard to
anyone who entered the area. The lack of warnings and barriers created a hazard by not warning
workers to stay out of the area. The mandatory standard is intended to prevent access, or at least
provide caution, when miners must access an area where a hazard exists, yet is not obvious. The
evidence here demonstrates that there is a strong likelihood that a miner, who is not familiar with
the area, would enter into an unsafe walkway and likely be injured.

Inspector Norman suggests that unknowingly using the floor of the walkway would result
in an accident if the floor gave way. In addition, the condition of the concrete under the mud and
pellets added to the slip and fall hazard. Without notice, miners will not avoid the area or take
precautions if they do decide to access the area. The miners also explained to Inspector Norman
that tying off to use the walkway was difficult at best and, often times, miners were without fall
protection. The decision to require fall protection was not effective in this case. and did not
mitigate the hazard created by the lack of barriers or warning signs.

Norman also testified that a hazard is likely to lead to an accident which would in turn
result in a serious injury. A miner who wanted to use the walkway, would not be aware of the
floor under the pellets, and could trip on the uplifted cement floor, or stumble on one of the

21


hazards created as a result of this violation were likely to result in serious injury. These hazards
include tripping or falling on the walkway or through to the ground below.

The parties disagree over whether a fall due to the failure of the walkway floor would
reasonably have been expected to cause death or serious bodily injury. The mine argues that the
potential for such a fall from the elevated walkway must be evaluated in the context of a miner
using fall protection. The mine’s argument assumes that miners were always correctly and
appropriately tied off when using the outer walkways. The testimony in this case has shown
otherwise. King was clear that he and the other contractors were not tied off for the entire time
and gave two examples. First, they were not tied off when they walked up the ramp in order to
take turns cleaning the walkway. Second, they could not tie off for the entire time while using a
high pressure hose to move the pellets down the walkway because they had to unclip in order to
move down the walkway. Furthermore, the contract miners did not appear to understand that
they needed to be tied off for the entire time that they used the east walkway. Thus, based on the
facts surrounding the violation, | find that the violation reasonably could have been expected to
cause death or serious bodily injury.

Finally, a flagrant violation involves a “reckless or repeated” failure to make reasonable
efforts to eliminate the violation. 30 U.S.C. § 820(b)(2). This component of the flagrant
violation relates to the degree of negligence with which the operator acted. The unwarrantable
failure analysis above also relates to negligence. However, the Commission in Am. Coal found
that based on the heightened penalties available under the flagrant provision, the violations
should be distinguishable from those addressed under the S&S and unwarrantable failure
provisions of the Act. 38 FMSHRC at 2069-70. Thus. the “reckless failure” component of a
flagrant violation requires a higher negligence showing than that required under the
unwarrantable failure analysis.

The mine’s conduct amounts to reckless disregard when analyzed in the context of the
negligence and unwarrantable failure frameworks, but the same conduct does not rise to the
heightened recklessness contemplated by a flagrant designation. In Stillhouse Mining, Judge
Paez noted that a reckless failure to make reasonable efforts to eliminate a violation occurs when
“in light of all the facts and circumstances surrounding the violation, the operator does not take
the steps a reasonably prudent operator would have taken to eliminate the known violation of a
mandatory health or safety standard and consciously or deliberately disregards an unjustifiable,
reasonably likely risk of death or serious bodily injury.” Stihouse Mining, LLC, 33 FMSHRC
778, 804 (Mar. 2011) (ALJ). The analysis is in line with the Commission’s discussion in Am.
Coal, 38 FMSHRC 2062.

While it is true that Northshore failed to take steps that a reasonably prudent operator
familiar with the mining industry would have taken to protect miners from the risks related to
using the walkways in their deteriorated condition, they made some effort to address their
concerns. Respondent could have repaired the walkway but the mine chose to use fall
protection as a solution. Given that decision, there is no evidence to suggest a conscious or
deliberate indifference to the risks on the part of the mine. Instead, the evidence indicates that
the mine was limited at best in its evaluation of the risks. In other words, rather than ignoring
the problem, the mine did not fully consider the appropriate steps to take to mitigate the risk

19


(Tr. 399). The concrete was removed in long, unbroken segments and the welded wire
reinforcement remained embedded in the concrete (Tr. 533-34). The condition of the concrete
walkway remained substantial within the meaning of the cited standard such that no violation
occurred,

The ALJ ignored this evidence. She also relied upon Mr. Leow’s report but rejected Mr.
Leow’s testimony explaining the report (ALJ 10).4 Most importantly, the ALJ ignored the
fundamental fact in the report as to the outer walkways because the outer walkways were not
reinforced by steel plates for which strength calculations could be calculated, Mr. Leow was
unable to render an opinion as to its strength. He simply adopted a conservative estimate based
on his limited observations of some conditions. His report, therefore, does not establish that the
walkways were of insubstantial construction.

The ALJ also ignored evidence as to the function and purpose of the perlite (Tr. 549).
Mr. Superfesky. who has never designed or constructed a walkway like this, believed that the
perlite was the primary component of strength (Tr. 296-97). Mr. Franseen, who had experience
designing and constructing walkways and who oversaw the demolition of this walkway,
indicated that the perlite was primarily present as form for the concrete (ALJ 549). Moreover,
Mr. Superfesky was not even aware that, while he could see the reinforcing in the perlite, the
concrete was also reinforced (Tr. 283). The ALJ credited the testimony of Mr. Superfesky and
essentially ignored the testimony of Mr. Franseen. But Mr. Franseen had a far greater chance to
observe the concrete during demolition (Tr. 532). The ALJ erred in her holding because it was

not supported by substantial evidence and review is appropriate.

a The ALJ's rejection of Mr. Leow’s testimony is illogical. She rejected the testimony
because it was inconsistent with his report; however, the point of such testimony was to explain
the report.

12


access was not intended as an outright prohibition on travel on the outer walkways (Tr. 370).°
Mr. Leow and Mr. Scamehorn also discussed safety measures that should be taken when the
outer walkways would be accessed (Tr. 371). Mr. Leow agreed that fall protection would be
adequate under those circumstances (Tr. 371).

Afier his conversation with Mr. Leow, Mr. Scamehorn told Mr. Peterson and Mr. Zimmer
that there was no outright prohibition on travel on the outer walkways (Tr. 330-31, 390, 423). It
was decided that fall protection should be required when accessing the outer walkways out of an
abundance of caution in case an unanticipated hazard developed (Tr. 331-33, 427). Northshore
must necessarily rely on Mr. Leow’s communication and the ALJ’s finding ignores that.
Moreover, there is no dispute that the policy of wearing fall protection was fully communicated
down through the workforce by various means; direct communication, safety meeting reminders,
work orders and additional training (Tr. 391-93, 427-31, 450-51; RX-E; RX-F).° Northshore
shared its training materials with the contractor, so that Vanhouse could similarly train its
employees who work at Northshore (Tr. 557-58). There were no reports to management of the
fall protection policy not being followed on the outer walkways or of any other concerns with
respect to wearing fall protection on the outer walkways (Tr. 392, 428, 452).

The September 7, 2016 incident was not evidence of the condition of the outer walkways.
An analysis after the incident revealed that an unknown crack in the beam existed at the point of
failure (Tr. 501). The crack was obscured by a gusset plate that covered the rivet holes (Tr. 502).

The failure was caused by an overloading of the connection point due to the pushing of pellets

s There was already no casual travel along the outer walkways as the center walkway
served as the main travelway (Tr. 135, 316).

i The training on fall protection included how to wear fall protection, appropriate tie off
points and the requirement of 100% tie off when fall protection is required (Tr. 556).

14


TABLE OF CONTENTS

Page
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ATT SDB C1GtO8 rscvcrveesecercsraccecsvresuovveweereunresesurvcexposanvkveertesns tenn streinenuness es ree iacatesenersanteessenersanen sre 6
DisGussiOm yovssscrsesscaresvensyancereviyessecsosquesysvvesccasvvesccvesvvasvevvivsveusiasweessteveeas covectansesnsvsurcesevveassovwesneseese by
I. ORDER NO. 8897220
A, The ALJ's
Evidence
B. A Finding of Reckless Conduct for Citation No. 8897219 and
Order No. 8897220 is Unsupported by the Evidence ........cccccseeeeees 13
IL. THE ALJ’S FINDING OF UNWARRANTABLE FAILURE VIOLATIONS
WITH RESPECT TO ORDER NO. 8897220 AND CITATION NO. 8897219
WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE........c0cccssssesees 17
A. Wnwarrantable Pati sass: sescssuussvsnesesossceurs stsvssstsssevmevecrsvssssesuansvescess 17
Il. 110(c) ALLEGATION - NO INDIVIDUAL PENALTIES ARE PROPER......22


involved a violation of a standard requiring that equipment be locked out and tagged out while
electrical work is being performed. Jd. The Commission determined that the hazard was a miner
working on energized equipment. Jd. The likelihood of the hazard occurring must be evaluated
with respect to “the particular facts surrounding the violation.” /d.; see also McCoy Elkhorn
Coal Corp., 36 FMSHRC 1987, 1991-92 (Aug. 2014): Mathies, 6 FMSHRC at 4. At the third
step, the judge must assess whether the hazard, if it occurred, would be reasonably likely to
result in injury. Newrown, 38 FMSHRC at 2037. The existence of the hazard is assumed at this
step. /d.: Knox Creek Coal Corp. v. Sec'y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016). As
with the likelihood of occurrence of the hazard, the likelihood of injury should be evaluated with
respect to specific conditions in the mine. Newtown, 38 FMSHRC at 2038. Finally, the
Commission has found that the S&S determination should be made assuming “continued normal
mining operations.” McCoy, 36 FMSHRC at 1990-91.

Inspector Norman explained that based upon his investigation. he concluded that using
the outer walkways would result in an accident. The cited standard is designed to protect
persons from having to walk in an area that is not maintained in good condition. The lack of
such maintenance would result in any number of hazards, including a fall on the walkway, or a
fall through any holes in the walkway. Given that the walkway was covered in mud and taconite
pellets, the miners could not see the condition of the floor below and all accounts indicate that
the walkway floor was in poor condition. The fact that the concrete was in poor condition, and
that the walkway was covered in mud and pellets, both indicate a violation of the requirement to
keep the walkway maintained in good condition. Each condition created a separate hazard.
First. the pellets and mud contributed to a fall hazard in an area next to a moving conveyor.
Second, the condition of the walkway created a hazard of material falling to the ground below. as
well as uncertain footing and walking in the area with cracks and missing portions. Finally. the
condition of the walkway would cause it to give way, causing the miner to fall 50 feet to the area
below. 1 find it likely that all of these hazards were created in this instance and find further that
each of the hazards is likely to result in a serious injury.

Norman explained that if the floor gave way. a fall to the ground below would be fatal.
Even if tied off. the miner would be jolted and strike his head. He could hit equipment below
and injure his back or neck, or cement could fall and hit the miner. The use of fall protection,
therefore, does not mitigate the seriousness of the injury. Nor is the hazard mitigated by the fact
that the primary walkway was the center one, and not the east side walkway. Miners were often
sent out into the area of the east walkway, and were not tied off. Certainly the crew on
September 7 was only tied off a portion of the time, and King was fortunate that he was not more
seriously injured. The standard is designed to keep walking areas in good condition to prevent
fall hazards. Here, the hazard of falling was likely and a fall would result in a serious, if not fatal
injury. The violation is properly designated as S&S.

Negligence

The Commission has recognized that “[e]ach mandatory standard ... carries with it an
accompanying duty of care to avoid violations of the standard, and an operator's failure to meet
the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.”
AH. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met

12


Respectfully submitted,

By /s/ R. Henry Moore

23

R. Henry Moore

Arthur M. Wolfson

Jackson Kelly PLLC

Three Gateway Center, Suite 1500
401 Liberty Avenue

Pittsburgh, PA 15222
412-434-8055

412-434-8062 — fax
hmoore@jacksonkelly.com
awolfson@jacksonkelly.com

Counsel for Northshore Mining Company,
Roger Peterson and Matthew Zimmer


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, MINE SAFETY )
AND HEALTH ADMINISTRATION, ) CIVIL PENALTY PROCEEDING
(MSHA). )
) ALJ Margaret A. Miller
Petitioner. )
) Docket No. LAKE 2017-224
v. ) Docket No. LAKE 2017-248
) Docket No. LAKE 2018-146
NORTHSHORE MINING COMPANY, ) Docket No. LAKE 2018-141
ROGER PETERSON, employed by )
NORTHSHORE MINING COMPANY, and )
MATTHEW ZIMMER, employed by ) Mine: Northshore Mining Company
NORTHSHORE MINING COMPANY, ) Mine ID No. 21-00831
) RECEIVED
Respondents. ) DOUAET OFFICE
)

MAR 1 4 2019

— FEDERAC MINE SAFFTY AND

HEALIH REVIEW COMMISSION
PETITION FOR DISCRETIONARY REVIEW —

R. Henry Moore

Arthur M. Wolfson

Jackson Kelly PLLC

Three Gateway Center, Suite 1500
401 Liberty Avenue

Pittsburgh, PA 15222
412-434-8055

412-434-8062 fax

Counsel for Northshore Mining Company,
Roger Peterson and Matthew Zimmer


Whether the violation posed a high degree of danger. This violation, the failure to warn
miners of the unsafe condition of the walkway, posed a high degree of danger. A contractor or a
miner who did not usually work in or around the conveyor walkways would not understand that
access to the area was restricted, or that there was a safety hazard to be considered. Anyone
using the walkway would be subjected to a number of hazards, including the cracks, uneven
concrete, and the possibility of falling through a hole in the walkway floor.

Whether the violation was obvious. The hazard regarding the walkway was obvious to
many of the miners who spoke with Inspector Norman, but the unsafe condition of the walkway
was not obvious to each miner or contractor who may have been required to use the walkway.
Although the condition of the walkway was not obvious to all miners or contractors due to the
mud and pellets, the condition, and hence the violation, was obvious to mine management.

Operator's knowledge of the existence of the violation. The mine had knowledge of the
existence of the violation and failed to take any action. The mine received a number of
complaints from miners and engineers about the condition of the outer walkways, including
complaints about falling cement and debris. The mine managers received the KOA report in
June 2015 and understood that, at best, the outer walkways should be restricted from use.
Yet no action was taken to barricade or otherwise provide a warning about the condition of
the walkways. A reasonable prudent miner, and manager, familiar with the requirements of
the Act, would understand that to limit access or require the use of fall protection, requires a
barricade or some kind of notice at each end of each walkway.

Based upon the factors discussed, | find that the violation was a result of an
unwarrantable failure to comply with the standard.

C. Liability of the Agents

The Secretary also seeks to impose personal liability under Section 110(c) against
two employees of the mine: Matthew Zimmer, Section Manager for Hot Side Asset
Management, and Roger Peterson, Section Manager for Hot Side Operations and
Maintenance. The Secretary alleges that both Zimmer and Peterson, acting as agents of the
mine, knew of the violative condition addressed by Order No. 8897220, the failure to
maintain the walkway, and failed to act on the basis of that information to protect worker

safety and health.

The negligence of an operator’s agent is imputable to the operator for penalty assessment
and unwarrantable failure purposes. Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009);
Whayne Supply Co., 19 FMSHRC 447, 450 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991). The Mine Act defines an “agent” as “any person charged with
responsibility for the operation of all or a part of a coal or other mine or the supervision of the
miners in a coal or other mine.” 30 U.S.C. § 802(e). In analyzing whether an employee is an
agent of an operator. the Commission has considered factors including “the ability of the
employee to direct the workforce, whether the employee holds himself out as a person with
supervisory responsibilities and is so regarded by other miners, and whether the actions of the


that the upper layer of concrete showing through the mesh was stained red from taconite pellets,
indicating that it had been exposed for some time. Tr. 251. Superfesky explained that the mesh
broke easily. either during or before the accident, and thus must have been corroded. Tr. 254. In
Superfesky’s view, the weight of the pellets as they were being moved with high compression
water added to the cause of the failure of the walkway.

Following the accident, David Franseen, an engineer at KOA, visited the mine site to
investigate the accident and assist with remediation. He took photographs of the gallery over the
course of several weeks. Respondent's Exhibit M3 illustrates the east side of the gallery after the
exterior cladding had been removed. There are two vertical support beams with a diagonal beam
between them. The diagonal beam is broken and no longer connected to the left beam. Resp.
Ex. M3. The photograph also shows that a horizontal board used to attach the cladding is
broken, and bolts are sheared in the lower right hand corner at the connection point of two
horizontal beams. Franseen believed the horizontal beam had moved significantly during the
accident. Respondent’s Exhibit MI shows the piece of steel that the walkway would have been
resting on, known as the “clip angle.” Tr. 526-27. It is bent downward to an angle of
approximately 48 degrees. Resp. Ex. M1. Franseen opined that the pellets that were being hosed
down the walkway were a component of the failure of the beam and the walkway. The entire
conveyor structure was compromised and could no longer be used following the failure of the
beam and the walkway in September 2016.

A. Order No. 8897220

Following his inspection, Inspector Norman issued Order No. 8897220 to Northshore for
failing to maintain the 62/162 outer walkways in good condition. The Secretary alleges a
violation of 30 C.F.R. § 56.11002. which provides that “[c]rossovers, elevated walkways.
elevated ramps, and stairways shall be of substantial construction provided with handrails. and
maintained in good condition. Where necessary, toeboards shall be provided.”

The parties disagree as to whether the walkways were “maintained in good condition”
prior to the accident on September 7, 2016. The Secretary argues that the walkway had
extensive cracking. spalling concrete, delaminated concrete, and debonded and corroded
reinforcements, which diminished the carrying load strength. The walkways had been
deteriorating over a long period of time and, given the conclusions of the KOA report, the
walkway was not safe. The mine operator argues that the actual condition of the walkway was
substantial and had been maintained. The condition of the perlite panels and concrete did not
support the Secretary’s view that the walkway was not maintained.

Several expert witnesses testified regarding the condition of the east outer walkway.
Michael Superfesky,' a civil engineer with MSHA Technical Support, testified for the Secretary.
Superfesky visited the Northshore mine after the accident to determine the cause of the collapse
and whether the structure was safe for continued use. Superfesky discussed the accident with
Inspector Norman and mine personnel, and inspected the gallery, primarily the outside from a

1. Superfesky holds a master’s degree in civil engineering with an emphasis in structural
engineering. Tr. 234. He isa licensed professional engineer. He has conducted around 28
accident investigations for MSHA.


Whether the violation was obvious. The obviousness of the violative condition is an
important factor in the unwarrantable failure analysis. JO Coal, 31 FMSHRC at 1356. However,
when a condition is non-obvious because of actions of the operator, the Commission generally
does not recognize lack of obviousness as a mitigating factor. Consol., 35 FMSHRC at 2343
(upholding judge’s unwarrantable failure finding where the operator deliberately ignored testing
requirements in the mine’s ventilation plan).

The hazard was obvious to many of the miners who spoke with Inspector Norman. They
indicated that chunks of the walkway had fallen to the ground below and that they crawled across
the conveyor to do maintenance in order to avoid the outer walkways. The violation was also
obvious to the mine and particularly to the engineers who made complaints, including
Scamehorn, who requested an engineering report. The managers who reviewed the report were
aware of the hazard. The obviousness of the deteriorating and unsafe condition of the outer
walkways is one of the primary factors in finding this violation to be unwarrantable.

Operator's knowledge of the existence of the violation. In IO Coal, the Commission
reiterated the well-settled law that an operator's knowledge of the existence of a violation may
be established not only by demonstrating actual knowledge, but also by showing that the
operator “reasonably should have known of the violative condition.” JO Coal Co., 31 FMASHRC
at 1356-1357; see also Drummond Co., 13 FMSHRC 1362, 1367-68 (Sept. 1991): E. Associated
Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991); Emery Mining Corp.. 9 FMSHRC at 2002-04.

As discussed above, even if the mine denies knowledge of the violation—that is, the
condition of the outer walkway based upon their observation—the engineering report made it
clear that the walkway was not safe for use. The mine managers received the KOA report in
June 2015 and understood that, at best, the outer walkways should be restricted. Yet no action
was taken to repair or maintain the walkways. Knowledge is an important factor in determining
that the violation is unwarrantable.

Based upon the factors listed here, | find that the violation was a result of the mine’s
unwarrantable failure to comply with the Mine Act and its standards.

Flagrant Violation

The Secretary has designated this violation as flagrant and assessed a penalty of
$130,000.00 as a result.

The Act provides that

Violations under this section that are deemed to be flagrant may be
assessed a civil penalty of not more than $220,000. For purposes
of the preceding sentence, the term “flagrant” with respect to a
violation means a reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory health or
safety standard that substantially and proximately caused, or


On September 6, 2016, the VanHouse contract crew checked in with Gornik at the
beginning of the shift to receive work orders for the day. Gornik informed King and two other
VanHouse employees that they would be doing clean-up on the 62 conveyor ramp. Gornik and
the VanHouse miners then went to the office of Roger Peterson, the section manager for
operations on the “hot side,” which includes the conveyor gallery. Peterson informed the miners
that they should use fall protection to work on the walkway because there was a danger of
slipping on the pellets or getting caught in the moving conveyor. Lehtinen, the Northshore
employee who frequently acted as a liaison between Gornik and the contract workers, walked
with the VanHouse workers to the transfer tower at the top of the 62/162 conveyor. He
demonstrated how to put on the safety harnesses and then demonstrated how to wrap a canvas
wrap with D-rings onto a vertical support beam and use it to tie off with the lanyard from the
harness. Lehtinen told the contractors to work their way down the walkway and keep tying off to
successive beams. Tr. 50, 486. Because of the dusty and steamy conditions, along with the
width of the walkway, only one of the three contractors could work on the walkway at a time.

Therefore, the contractors rotated the duty every fifteen minutes and the two not on the
walkway waited in the transfer tower. King explained that the miners worked on the east
walkway, hosing the pellets and mud down toward the bottom of the ramp. The walkway was
covered in 6 to 12 inches of muddy pellets and the floor was not visible to the miners. They
clipped onto a D-ring on the anchor strap wrapped around a beam, cleaned until there was not
enough water pressure to move the pellets, then unclipped and moved the anchor strap farther
down the walkway. Tr. 51. The contract miners could not see the walkway under the
accumulated pellets, were not aware of any problems with the walkway, and did not see any
hazard or warning signs on the walkway. Tr. 69.

King explained that while moving up and down the outer conveyor walkway, there were
times between support beams when he was not tied off. Lehtinen, however, testified at hearing
that he had shown the miners how to use two lanyards in alternation in order to stay tied off the
entire time. Lehtinen also claimed that the miners used the process in reverse to remain tied off
while walking back up the walkway to the transfer tower. Tr. 487. King disagreed and
explained that the miners were not tied off the entire time because they had to unclip their
harnesses to move down the walkway when they reached the end of the lanyard. He did not
recall being told that he could be tied off continuously by using a lanyard borrowed from one of
the other miners, and denied that Lehtinen had instructed them to be clipped on the entire time.
Tr. 52, 77. Instead, King stated in an interview with an MSHA inspector that when the miners
walked up the ramp to switch places, they were not tied off. Lehtinen indicated that he did not
observe King or the other contractors while they were working on the walkway, and that he had
told them only that they should be tied off, assuming they would understand that they needed to
be tied off the entire time. Lehtinen also explained that he was not told directly why the miners
needed to be tied off, but he assumed it was because of the slip hazard presented by the pellets
and the slope of the walkway. Tr. 492. However, in an interview with Inspector Norman,
Lehtinen observed that Gornik told him to have the workers tie off both because of the pellets
and because of concerns over bad decking. Tr. 107. Norman also interviewed Gornik, who
confirmed that the workers were required to tie off because of the bad floor. Tr. 125. However,
at hearing, Gornik believed the fall protection was required because of the slip hazard from the
pellets. Tr. 129, 479. Given the contradiction in testimony, | find that both Gornik and Lehtinen


maintain a walkway in ‘good condition’ requires an operator to maintain it consistent with

reasonable expectations of safe use.” Washington Rock Quarries, Inc., 28 FMSHRC 1080, 1095

(ALJ Barbour Dec. 2006). Such a “reasonable person” standard is not subjective but objective.
See, e.g., BHP Minerals Int’l Inc., 18 FMSHRC 1342, 1345 (Rev. Comm. August 1996); Alan
Good, 23 FMSHRC 995, 1004 (Rev. Comm. Sept. 2006). The requirements of Section 56.11002
may be mitigated when fall protection is used. See Melvin Barlow, 23 FMSHRC 293, 295 (ALJ
Manning March 2001).

To the extent that the ALJ applied a legal standard to the facts, her findings are evaluated
under a “substantial evidence” test. 30 U.S.C. § 823(d)(2)(A)(ii)(1); Bussen Quarries, Inc. v.
Secretary of Labor, 895 F.2d 1039, 1044-45 (8th Cir. 1039); Plummer v. Apfel, 186 F.3d 422,

427 (3d Cir. 1999); Mobil Oil Corp. v. Fed. Power Comm’n, 483 F.2d 1238, 1257-58 (D.C. Cir.

1973). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept
as adequate to support [the judge’s] conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971): Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Substantial evidence is

more than a mere “scintilla.” It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477

(1951) (citation omitted). Accord Airport Shuttle Service v. ICC, 676 F.2d 836, 840 (D.C. Cir.

1982). The presence or absence of substantial evidence is to be determined by reviewing the
record “considered as a whole,” and an appellate tribunal must also consider anything in the
record that “fairly detracts” from the weight of the evidence that supports a challenged finding.
Universal Camera, 340 U.S. at 485, 488 (citation omitted). The “entire record must be
considered closely and not merely the evidence tending to support the finding.” Plummer, 186

F.3d at 427; Mobil Oil, 483 F.2d at 1258. Under the substantial evidence standard, a reviewing


employee in directing the workforce have an impact on health and safety at the mine.” Nelson
Quarries, 31 FMSHRC at 328.

Section 110(c) provides that when a corporate operator violates a mandatory health
or safety standard . . . any director, officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation . . . shall be subject to the same civil
penalties, fines, and imprisonment that may be imposed upon a person under subsections (a)
and (d) [providing for assessment of civil and criminal penalties against mine operators]. 30
U.S.C. § 820(c). The Commission has explained that an agent is liable under Section 110(c)
when the agent, “knew or had reason to know of a violative condition.” McCoy, 36
FMSHRC at 1996. The relevant question is whether the agent knowingly acted: the
Secretary need not prove that the individual knowingly violated the law. /d.; Warren Steen
Const. Inc., 14 FMSHRC 1125, 1131 (July 1992).

The Commission has determined that “[a]n individual acts knowingly where he is,
‘in a position to protect employee safety and health [and] fails to act on the basis of
information that gives him knowledge or reason to know of the existence of a violative
condition.” McCoy, 36 FMSHRC at 1996 (quoting LaFarge Constr. Materials, 20
FMSHRC 1140, 1148 (Oct. 1998)) (alteration in original). Liability under Section 110(c)
“is generally predicated on aggravated conduct constituting more than ordinary negligence”
but, “does not hinge on whether an agent engaged in ‘willful’ conduct.” Mainey, employed
by Knox Creek Coal Co., 34 FMSHRC 777, 783 (Apr. 2012). For the purposes of Section
110(c), “knowing” conduct includes deliberate ignorance and reckless disregard as well as
actual knowledge. Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 363 (D.C.

Cir. 1997).

Zimmer and Peterson have worked at the mine for 13 and 25 years, respectively, and
both have shared an office and worked in managerial roles since at least 2015. As part of
their responsibilities, they both assigned and directed the work of other miners. Zimmer's
team was normally comprised of seven miners, while Peterson directed three operating
supervisors and four maintenance supervisors. Zimmer testified that it was part of his job to
plan and coordinate the maintenance and repair work that would take place in the 62/162
gallery, and ensure that his group worked safely. Peterson was largely responsible for
reviewing work orders, prioritizing and directing maintenance work, and, when necessary,
informing miners of any changes in safety policies or procedures. Both Zimmer and
Peterson became aware of the KOA report and its conclusions with respect to the outer
walkways shortly after the mine received the report in June 2015.

The KOA report included the recommendation that access to the outer walkways be
restricted, “as they are not safe for personnel to be using until a repair has been completed.”
Sec’y Ex. 12. Following a conversation with Scamehorn, the mine engineer who initially
received the KOA report, both Zimmer and Peterson believed that the report's
recommendation to restrict access was not an outright prohibition, but rather a limitation on
use of the outer walkways. Instead of repairing or prohibiting use of the walkways, together
they decided to implement a fall protection policy. Shortly after receiving the report,
Zimmer and Peterson informed their crews of the fall protection requirement. When the

25;


There is sufficient evidence to demonstrate that both Zimmer and Peterson, acting as
agents of the mine, knew that the walkways of the 62/162 gallery were not of substantial
construction or maintained in good condition. Many of the actions that resulted in a finding
of reckless disregard, for Order No. 8897220, can be attributed to the action or inaction of
Zimmer and Peterson as agents of the mine. For example, Zimmer authorized a work order
for the 62/162 gallery in September 2015, which stated, in part. “[vJerify the floor is safe on
the east side of the conveyor. Roger [Peterson] says that fall protection is required.” Resp.
Ex. F. The contractors testified that they were not told of the condition of the floor, only
that they needed fall protection to avoid falling on the pellets. Moreover, as managers,
Zimmer and Peterson received copies of the KOA report, along with an email from
Scamehorn alerting them to the structural issues with the walkways and suggesting that they
restrict access.

Similarly, there is sufficient evidence to support the conclusion that Zimmer and
Peterson failed to act on the basis of the walkway information to protect worker safety and
health. Following receipt of the KOA report, Zimmer and Peterson spoke with Scamehorn.
Together, they decided that they would take no corrective action, but instead put the
walkways on a list for later repair. More than a year later, when King and the contract crew
were assigned to clean the outer walkway, nothing had been done to repair or maintain the
walkways. Zimmer and Peterson did agree to require fall protection and instructed the
supervisors regarding the need for fall protection on the outer walkways. However, they
failed to repair or maintain the walkway. Fall protection was an inadequate solution to
address the violative condition here; miners could not be tied off the entire time on the outer
walkways and had to unclip their harnesses to move when performing maintenance on the
conveyor belts and when hosing down the pellets. Both Zimmer and Peterson did not fully
consider the importance of repairing the walkways or warning the miners of the deteriorated
state of the walkways, and instead tried to work around the issue by implementing, rather
badly, a policy of fall protection. Mine managers who are trained on the requirements of the
regulations, and on the importance of safety and health, should have known that the
conveyor walkways must be maintained in good condition or, alternatively, restricted from
access appropriately. Therefore, I find both Zimmer and Peterson, individually, liable under
section 110(c) of the Act.

Il. PENALTY

The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges, “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is
delegated to the Secretary. 30 U.S.C. §§ 815(a), 820(a). The Secretary calculates penalties
using the penalty regulations set forth in 30 C.F.R. § 100.3, or following the guidelines for
special assessments in 30 C.F.R. § 100.5, When an operator notifies the Secretary that it intends
to challenge a penalty, the Secretary then petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. Commission judges are not bound by the Secretary’s penalty regulations or
his special assessments. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act
requires that in assessing civil monetary penalties, the judge must consider six statutory penalty

27


B. A Finding of Reckless Conduct for Citation No. 8897219 and Order No.
8897220 is Unsupported by the Evidence

The ALJ found that the condition was the result of reckless disregard (ALJ 14), relying
on Mr. Superfesky’s testimony that the condition of the walkway was the primary reason for the
failure. She also found that miners were “often not tied off’ (ALJ 13). She held that there had
been a number of complaints about the walkway before the Krech Ojard report. The ALJ also
found that the condition was the result of reckless disregard, despite finding that the requirement
of fall protection was a mitigating factor (ALJ 14). To support this finding, she relied on a
finding that the concrete continued to deteriorate (ALJ 15). She relied on the length of time the
condition existed between the report and the incident, and did not mention that the facility was
idled for approximately half that period (ALJ 15). She found that the condition was extensive
despite the limited work that had to be done for the outer walkways (ALJ 15).

She relied on the Krech Ojard report and complaints of miners to find that the operator
was on notice. She also found that the violation created a serious safety hazard from stumbling,
walking on pellets and falling through the walkway and thus a “high degree of danger” (ALJ 16).
She found the condition was obvious and that the operator knew of the condition (ALJ 17).

The sequence of relevant events, however, demonstrates Northshore made reasonable
efforts in light of what was known about the outer walkways. The ALJ essentially ignored the
fact that Northshore’s actions must be viewed in light of what they were told by Mr. Leow. In
making her finding, the ALJ also relied on the Krech Ojard report but rejected Mr. Leow’s
testimony about the report and his discussions with Mr. Scamehorn. Such inconsistency
demonstrates the lack of evidentiary support for her findings in this regard.

Mr, Scamehorn and Mr. Leow discussed the low level of exposure on the outer walkways

(Tr. 330, 374-75). Mr. Leow further confirmed that his recommendation regarding “restricted”

13