**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF THE CHIEFADMINISTRATIVE LAW JUDGE

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

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

 

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| SECRETARY  OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION  (MSHA),

                        Petitioner

 

                        v.

 
   MARYLAND ENERGY  RESOURCES, LLC,
                        Respondent                                                                      |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. YORK 2023-0024

A.C. No.  18-00780-567820

 

 

 

 

 

 

Mine: Casselman  Mine   

    |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

**DECISION APPROVING SETTLEMENT**

 

Before: JudgeMoran

 

Thiscase is before the Court upon a petition for assessment of a civil penaltyunder Section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary’sConference Litigation Representative (“CLR”), who is not an attorney, has fileda Motion to Approve Settlement. The Respondent has agreed to the modifications forthe two violations in this matter and to the enormous reductions in the civil penaltyamounts. The originally assessed amount for the now-admitted violations was $5,296.00and the proposed settlement total amount is $698.00, (six hundred ninety-eightdollars). Individually, the two violations were each assessed at $2,648.00,with the reductions for each reduced to $349.00 (three hundred forty-ninedollars). These represent penalty reductions of 87% for each violation. Bothviolations, originally      a (d)(1) citation and a (d)(1) order, have beenmodified to 104(a) citations. The modifications and the settlement amounts are summarizedin the following table: 

 
| **Citation No.**   | **Originally Proposed  Assessment** | **Settlement Amount** | **Modification**                                                                                                                                                                                 |
|--------------------|--------------------------------------|-----------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **YORK 2023-0024** |
| 9250036            | $2,648.00                            | $349.00               | Modify Injury or  Illness to Unlikely, 

Modify S&S  Designation to No, 

Modify Type of Action  to 104(a), 

Modify Type of Issuance  to Citation

**87% reduction in  penalty ** |
| 9250037            | $2,648.00                            | $349.00               | Modify Injury or  Illness to Unlikely, 

Modify S&S  Designation to No, 

Modify Type of Action  to 104(a)

**87% reduction in  penalty **                                          |
| **Total**          | **$5,296.00**                        | **$698.00**           | **87% overall reduction  in penalty **                                                                                                                                                     |

 

 

**CitationNo. 9250036**,issued as a (d)(1) order, alleged a now-admitted violation of    30 C.F.R. §77.503. Titled “Electric conductors; capacity and insulation,” it provides “[e]lectric conductors shall be sufficient in size andhave adequate current carrying capacity and be of such construction that a risein temperature resulting from normal operation will not damage the insulatingmaterials.” 

 

            TheMSHA Inspector who issued this (d)(1) order, Louis Bernatowicz, stated in theCondition or Practice section of the citation:

 

The #12 AWG Electric Conductors forthe 14 - 120 Volt A.C. Outlets in the Cart ChargingBuilding are *not sufficient in size and do not have adequate currentcarrying capacity and are not of such construction that a rise in temperatureresulting from normal operation will not damage the insulating materials*.**4 of the 14 outletsshow evidence of overheating with damaged and melted plastic in thereceptacles.****5 of the last 10 monthly electricalexams of the Cart Charging Building show receptacles were replaced.**

This violation is an unwarrantablefailure to comply with a mandatory standard.

 

Petition for civil penalty at 9 (emphasisadded).

 

            To terminate the (d)(1)order:

 

The 12 - 120 Volt AC outlets in theCart Charging Building were rewired with #10 AWG copper wire. 30 Amp GroundFault Circuit Interrupter Breakers labeled 1 through 12 were also installed foreach individual 3 or 4 prong 30 amp receptacle numbered 1 through 12. The 10Battery Chargers in the Cart Charging Building are individually identified withnumbers 11 through 14, and either 3 or 4 prong 30 amp twist lock plugs wereinstalled on all chargers except #11 which is out of service for output plugrepair. A contractor was brought in to help rewire the building. The 2 240 VoltAC outlets labeled A and B that had extension cords running to 2 chargers willnot be used due to the different plug types on the chargers. The 2 - 240 VoltAC extension cords running to the 2 - 120 volt AC battery chargers wereremoved. The Cart Charging Building was examined by an electrician and the examrecorded in the record book on the surface stating the charger circuits wereupgraded to 30 amp from 20 amp.

 

*Id*. at 10.

 

In theMotion, “Respondent contends that injury from the cited condition would not bereasonably likely to occur, asserting that the circuits were properly groundedand therefore did not pose a shock hazard. The inspector noted that gravityevaluations were based on fire hazards resulting from the overheating of theinadequately sized conductors. However, the affected circuits were in an open,metal shed on the surface where little potential for fire propagation orentrapment existed.” Motion at 4.

 

 

**CitationNo. 9250037**, isrelated to the just described violation identified in Citation No. 9250036. Issuedas a (d)(1) citation, Citation No. 9250037 alleged a now-admitted violation of30 C.F.R §77.502. Titled “Electric equipment; examination, testing, andmaintenance,” it provides that “Electric equipment shall be frequentlyexamined, tested, and properly maintained by a qualified person to assure safeoperating conditions. When a potentially dangerous condition is found onelectric equipment, such equipment shall be removed from service until such conditionis corrected. **Arecord of such examinations shall be kept**.”

 

            Forthis now-admitted violation, issued 9 minutes before Order No. 9250036, InspectorBernatowicz, stated in the Condition or Practice section of the citation:

 

The Battery Chargers in the CartCharging Building and the Shop are not frequentlyexamined, tested, and properly maintained by a qualified person to assure safeoperating conditions. ***No*****record of the examinations****for the 14 battery chargers in theCart Charging Building and the Shop are being kept. The chargers have been inuse at the mine for at least 8 months.**

Standard 77.502 was cited 1 time intwo years at mine 1800780 (1 to the operator, 0 to a contractor). Thisviolation is an unwarrantable failure to comply with a mandatory standard.

 

Petition for civil penalty at 5 (emphasisadded).

 

To terminate the (d)(1) citationthe following occurred: 

 

The Battery Chargers in the CartCharging Building and the Shop have been individually identified with numbers 1through 14. The Battery Chargers have been properly examined by a electricianwith the results recorded in the book maintained on the surface. BatteryChargers 1 through 4 in the shop and charger number 11 in the Cart ChargingBuilding have been removed from service with the plugs cut off and removed.Chargers 1 through 4 are in the shop and are 60 amp output chargers with thenameplate tag identifying 2 of the chargers as 15 amp max input and the other 2chargers as 30 amp max input. The 3 other 60 amp output battery chargers at themine in the Cart Charging Building have name plate tags identifying the maxinput as 30 amps. All of the nameplate tags on the 14 battery chargers at themine state input voltage as 110 Volt AC. The 2 battery chargers in the CartCharging Building that were plugged into 220/240 Volt AC Receptacles wereremoved from service, plugs changed and plugged into 110/120 Volt AC. Theoperator stated the 2 battery chargers in the Shop that were plugged into220/240 Volt AC will be only be used on 110/120 Volt AC when they are placedback in service. All chargers now in service have new 30 amp rated plugs, andare plugged into 30 amp 110/120 Volt AC receptacles.

 

*Id.* at 7.

 

            Inthe Motion “Respondent contends that injury from the underlying condition wouldnot be reasonably likely to occur, asserting that the chargers were beingexamined weekly in conjunction with the corresponding vehicles, and that thecircuits were properly grounded and therefore did not pose a shock hazard. Theinspector noted that gravity evaluations were based on fire hazards (associatedwith the underlying conditions referenced in Order No. 9250036 ...) resultingfrom the overheating of the inadequately sized conductors. However, theaffected circuits were in an open, metal shed on the surface where little potentialfor rapid fire propagation or entrapment existed.” Motion at 3.

 

**Analysis**

** **

****Both of these, now-admitted, violationsinvolve serious hazards and required significant remedial actions to cure thehazards found by the diligent MSHA Inspector, Louis Bernatowicz. 

 

            Batterychargers can present serious safety and health risks. These hazards which areassociated with the use,handling, storage, or when the battery is charging. They include: overheating, fireor explosion, electrical shock from battery chargers, thermal burns and 

exposureto corrosive battery electrolytes. https://weeklysafety.com/blog/batteries

 

            Thecharging of lead-acid batteries “can be hazardous. The two primary risks arefrom hydrogen gas formed when the battery is being charged and the sulfuricacid in the battery fluid, also known as the electrolyte. Hydrogen gas can leadto fires and explosions, and worker exposure to sulfuric acid can lead tochemical burns and other adverse health effects. Improper handling of batteriescan also lead to shocks and electrocution, and battery charging can also resultin the release of other harmful contaminants.”

https://www.ccohs.ca/oshanswers/safety_haz/battery-charging.html#:~:text=The%20two%20primary%20risks%20are,and%20other%20adverse%20health%20effects.

 

The two conceded violations in this docket arose from thesame circumstance, as they were discovered in the mine’s Cart Charging Building.

 

**The104 (d)(1) Order, No. 9250036**,**Insufficient outlet size and inadequate current capacity**

 

            Asnoted, this now-admitted violation was issued for the failure to have electricconductors of sufficient in size and adequate current carrying capacity and fortheir failing to be of such construction so that a rise in temperatureresulting from normal operation will not damage the insulating materials. Theinspector’s condition or practice section of the Order details egregiousviolations. The inspector found that **29%** (twenty-nine percent) of theoutlets showed evidence of overheating with damaged and melted plastic receptacles.And the operator cannot claim ignorance of this problem, not with 5 of the last10 monthly electrical exams resulting in receptacles being replaced. Thisspeaks loudly to the issue of unwarrantable failure, supporting the inspector’sfinding in that regard.  

 

            Theseuncontested findings are in accord with *Peabody Midwest,* 44 FMSHRC 515 (Aug.2022), wherein the Commission reiterated its long-standing law “thatunwarrantable failure means aggravated conduct constituting more than ordinarynegligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Whether conductis “aggravated” in the context of unwarrantable failure is determined bylooking at the facts and circumstances of each case to see if any aggravatingfactors exist, such as the operator's knowledge of the existence of theviolation, whether the violation was obvious, whether the violation posed ahigh degree of danger, the extent of the violative condition, the length oftime that the violative condition has existed, the operator's efforts in abatingthe violative condition, and whether the operator has been placed on noticethat greater efforts are necessary for compliance. *See Manalapan Mining*Co., 35 FMSHRC 289, 293 (Feb. 2013); *IO Coal Co*., 31 FMSHRC 1346,1350-57 (Dec. 2009).”

*Id.*at 522

 

            Andthough the foregoing is more than sufficient to support Inspector Bernatowicz’sevaluation in all respects, the remedial actions to bring the Cart ChargingBuilding into compliance make this abundantly clear:

 

The 12 -120 Volt AC outlets in the Cart Charging Building were rewired with #10 AWGcopper wire. 30 Amp Ground Fault Circuit Interrupter Breakers labeled 1 through12 were also installed for each individual 3 or 4 prong 30 amp receptacle numbered1 through 12. The 10 Battery Chargers in the Cart Charging Building areindividually identified with numbers 11 through 14, and either 3 or 4 prong 30amp twist lock plugs were installed on all chargers except #11 which is out ofservice for output plug repair. A contractor was brought in to help rewire thebuilding. The [two] 240 Volt AC outlets labeled A and B that had extensioncords running to 2 chargers will not be used due to the different plug types onthe chargers. The [two] - 240 Volt AC extension cords running to the 2 - 120volt AC battery chargers were removed. The Cart Charging Building was examinedby an electrician and the exam [was thereafter] recorded in the record book onthe surface stating the charger circuits were upgraded to 30 amp from 20 amp.

 

*Id.* at 10.

 

            Inthe Court’s opinion, the Respondent’s contention that injury from the citedcondition would not be reasonably likely to occur, asserting that the circuitswere properly grounded and therefore did not pose a shock hazard, is misguidedand insufficient. The Court considers the excuse as an effort of misdirectionfrom the many hazardous conditions found by the inspector. As described above, thehazards are not limited to fire. For that reason, the “metal shed” excuse doesnot address all the associated hazards. The Court finds the inspector’sdetermination of negligence as ‘high’ to be well-supported – the Order, thefacts reported in it, which were not challenged, establishes this. 

 

**The 104(d)(1) Citation, No. 9250037, Failure to frequently examine, test, and properlymaintain electric equipment *and to keep a record of such examinations***

** **

            Forthis other, now-admitted violation, connected with the Cart Charging Building, InspectorBernatowicz found an equally egregious violation, having determined that therewas ***no record* being kept of the examinations for the 14 batterychargers in the Cart Charging Building and the Shop.****This was along-standing violation, as the chargers had been in use at the mine for atleast 8 months.** The operator challenges *none of these facts.*Instead,it advances largely the same arguments it made for the first violation – that shockhazards and fire and entrapment were not reasonably likely. The operator adds theclaim that the chargers were being examined weekly. However, one would have to respondthat those exams, if they actually were being conducted, were, to be polite, grosslyinadequate.

 

            Behindthe excuse presented by the operator, is the suggestion that this was only arecordkeeping violation. The Court does not adopt this perspective – recordkeepingis no second-class requirement, impervious to significant and substantial andunwarrantable findings. If viewed as lesser safety and health requirements, theirimportance is seriously diminished. Recordkeeping requirements keep mineoperators on the up and up. And here, the operator did not keep such requiredrecords for eight (8) months. It is no excuse to claim, as the operator doeshere, that the chargers were being examined weekly. Anyone could *claim*that.It is for that reason that the standard requires *records* of exams. Further,where recordkeeping is involved, the Court believes that the measure of whatconstitutes a “significant and substantial” violation should be flexible, muchas exposure to dust is not measured by a one-time exposure. Similarly, where amine operator habitually fails to comply with a recordkeeping requirement,under the continued normal mining operations principle, sooner or later suchfailures will produce a reasonable likelihood of a reasonably serious injury. Ifthat is not true, then it would seem that all recordkeeping violations wouldnot be S&S, a result which would eviscerate their importance.

 

            Basedon the information available to the Court and given that it is precluded from reasonableinquiry, it is clear that the (d)(1) citation and order were well supported. Further,penalty reductions of this order run counter to Congress’ express directionthat penalties are to be of sufficient magnitude to make compliance the less expensiveoption over non-compliance. The $349.00 penalties in the motion do not meetwith Congress’ instruction. 

 

Despite the foregoing, the Court isnot permitted to make reasonable inquiry about settlement motions. With thatrestriction, the Court has considered the Secretary’s Motion and approves it *solely*on the basis of the Commission’s decisions in *The American Coal Co*., 40FMSHRC 983 (Aug. 2018) and *Rockwell Mining, LLC*, 40 FMSHRC 994 (Aug.2018) for the standard to be applied by Commission administrative law judgeswhen reviewing such settlement motions under the Commission’s interpretation ofsection 110(k) of the Mine Act. Per the Commission’s decisions on the scope ofa judge’s review authority of settlements, the “information” presented in thissettlement motion is sufficient for approval. 

 

            Shouldthe Commission agree that the motion is inadequate for the reasons articulatedby the Court, it has the authority to review, per 29 C.F.R. 2700.71. 

 

The motion to approve settlement is**GRANTED**, and Respondent is hereby **ORDERED** to pay the Secretary ofLabor the sum of $698.00 within 30 days of the date of this decision.[1]

The violations are modified, asreflected in the table above, to Section 104(a) citations, with the gravityreduced to unlikely. As a consequence, the modifications erase the significantand substantial determinations.

 

 

 

 

/s/William B. Moran

                                                                                    WilliamB. Moran

                                                                                    AdministrativeLaw Judge

 

 

 

 

 

Distribution:

 

ChrisA. Weaver, CLR, U.S. Dept. of Labor, MSHA, 604 Cheat Road, Morgantown, WV 26508(weaver.chris@dol.gov)

 

R.Henry Moore, Esq., Fisher & Phillips, LLP, Six PPG Place, Suite 830, Pittsburgh,PA 15222 (hmoore@fisherphillips.com)

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[1]Penalties may be paid electronicallyat Pay.Gov, a service of the U.S. Department of the Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment (checkor money order) to: U.S. Department of Treasury, Mine Safety and HealthAdministration, P.O. Box 790390, St. Louis, MO 63179-0390. 

It isvital to include Docket and A.C. Numbers when remitting payments. 

.