**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVELAW JUDGES

1331 PENNSYLVANIAAVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987/ FAX: 202-434-9949

 

 
| SECRETARY  OF LABOR,

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA),

                 Petitioner,

 

                        v.

 

NORTHSHORE  MINING COMPANY,

                 Respondent.                                                               |   |   | CIVIL  PENALTY PROCEEDING

 

 Docket  No. LAKE 2021-0153

    A.C.  No. 21-00831-535125

 

 

    Mine:  Northshore Mining Company        |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION AND ORDER**

 

Appearances:              EmeldaMedrano, Esq., Office of the Solicitor, U.S. Department of Labor,

                                    Chicago,Illinois, for the Petitioner

 

                                    ArthurM. Wolfson, Esq., Fisher & Phillips LLP, Pittsburgh,

                                    Pennsylvania,for the Respondent

 

Before:  JudgeYoung

**SUMMARY**

 

**Citation No. 6166190, 30 C.F.R. §56.12028: Failure to conduct grounding and continuity tests.** Required annual continuity andresistance testing of grounding systems was not conducted on six conveyors, twosurface water pumps, and two counter hoist weights. 

Facts                                                                                        p.2 (Slip Op.)

Fact of violation         Affirmed                                             p.2–3

Gravity                        Affirmed                                             p.3–5

Negligence                  Affirmed                                             p.5–6

Penalty                        $530                                                    p.6

 

**I.              ****INTRODUCTION**

 

Thiscase is before me upon petition for assessment of civil penalty filed by theSecretary of Labor (“Secretary”) pursuant to Section 105(d) of the Federal MineSafety and Health Act of 1977, as amended (“Mine Act” or “Act”), 30 U.S.C. §815(d). At issue is one citation under section 104(a), issued to Respondent, NorthshoreMining Company (“Northshore” or “Respondent”). The parties presented testimonyand documentary evidence at a video conference hearing on November 18, 2021,and subsequently filed post-hearing briefs.

 

Northshoreowns and operates the Northshore Mining Company mine site located in SilverBay, Minnesota. Jt. Stip. 3; S. Post-Hearing Br. at 2 (Jan. 28, 2022) (“S.Br.”). On the mine site, taconite is processed to make iron pellets. S. Br. At1, 3. The mine site is subject to the jurisdiction of the Mine Act and theCommission. Jt. Stips. 1, 2; S. Br. at 2. Citation No. 6166190 alleged that Respondentfailed to conduct grounding and continuity tests as required under 30 C.F.R. §56.12028. For reasons set forth below, I **AFFIRM** this citation and assessthe penalty as proposed.

 

**II.           ****FACTUALFINDINGS**

 

            Thiscitation was issued by Inspector Mindy Meierbachtol on April 7, 2021. Ex. P–3,002. She assessed the gravity as “unlikely,” “fatal,” non-S&S, and oneperson affected. *Id.* She assessed negligence as “moderate.” *Id.* Theinspector stated: 

 

The continuity andresistance testing of grounding systems was not conducted on the 162 conveyor,62 conveyor, 163 conveyor, 63 conveyor, 64 conveyor, 67 conveyor, North & Southsurface water pump, and 63/163 counter hoist weight. This condition exposedminers to electrical shocks and burns resulting in injury. The last recordedcontinuity and resistance test was 12/1/2018. Continuity and resistance testsare necessary to discover electrical problems and to correct them before anelectrical shock can occur.

* *

*Id.*

 

Theinspector reviewed the electronic records for the continuity and resistancetests of six conveyors, two water pumps, and the two counter hoist weights. Tr.41–42, 62–63, 77–78, 149; P–5. Respondent’s records revealed that theannual tests for the cited equipment had not been completed, and Respondent wasunable to provide documentation of any recorded tests after 2018 for the conveyors and waterpumps, and after 2019 for the counter hoist weights. *See* Tr. 42, 65, 84,120–121, 125; Ex. P–4. 

 

Theviolation was abated two days later, on April 9, 2021, when an electricianconducted and recorded the required tests. Tr. 74, 81–82; Ex. P–4, 010. Thetests showed that the systems were properly grounded and would have tripped ifnecessary. Tr. 63–64, 78–79;Ex. P–4, 010.

            Athearing, the Secretary testified that the counterweight hoists and water pumpshad a voltage of 480 volts, while the conveyors had a voltage of 2,400 volts. Tr.68–70, 137. Previous tests showed that the systems were functioning properly. *Id.*at 78–79. However, Respondent conceded that it could not have known if thegrounding systems were working properly at the time the citation was issued. *Id.*at 125–26. 

 

Respondentalso testified that this citation was likely a “paperwork violation,” meaningthat someone could have performed the tests without recording them. *Id.*at 138, 139. Respondent also contended that multiple redundant systems,including grounding through the system’s feeder cable and an external groundfor motors, would lessen the Secretary’s gravity assessment. *Id.* at 143,146–47.

 

**A.   ****Violation**

 

            TheSecretary must prove the elements of an alleged violation by a preponderance ofthe evidence. *See Jim Walter Res.*, 28 FMSHRC 983, 992 (Dec. 2006); *RAGCumberland Res. Corp.*, 22 FMSHRC 1066, 1070 (Sept. 2000). Mine operatorsare generally strictly liable for mandatory safety standard violations. *SeeFreeman United Coal Mining Co. v. FMSHRC*, 108 F.3d 358, 361 (D.C. Cir.1997); *Nally & Hamilton Enters., Inc.*, 33 FMSHRC 1759, 1764 (Aug.2011).

Thecited standard states, “Continuity and resistance of grounding systems shall betested

immediatelyafter installation, repair, and modification; and annually thereafter. A recordof the resistance measured during the most recent tests shall be made availableon a request by the Secretary or his duly authorized representative.” 30 C.F.R.§ 56.12028 (2022). The inspector issued this citation based onRespondent’s failure to perform annual continuity and resistance testing on sixconveyors, two water pumps and two counterweight hoists. Tr. 65. 

 

            TheSecretary provided credible testimony that Northshore violated thestandard by failing to conduct annual continuity and resistance testing on groundingsystems on the North and South surface water pumps, the No. 63 and 163 counterhoist weights, and the Nos. 62, 162, 63, 163, 64, and 67 conveyors. Tr. 65,125, 137. There issufficient evidence to find a violation because Respondent did not provide, anddid not claim to have, records of the required tests. Tr. 123. Respondent’srecords revealed that annual tests had not been completed since 2018 for the conveyorsand the water pumps and 2019 for the counter hoist weights. Tr. 65. 

 

Respondentargued that it was possible a test was conducted and went unrecorded. However,no evidence was provided in support of this argument. On the contrary, KeithKlemner testified that if a test had been performed, it should have beenrecorded. Tr. 139. The fact that post-citation testing revealed propergrounding does not itself support the argument that this violation was merely a“paperwork violation.” 

 

Thisregulation is intended to protect miners—in this case, from the danger ofelectrocution or serious injury—by alerting mine operators to defects so thatthey can correct them to prevent serious injuries or fatalities fromelectrocution. Without performing these tests, Respondent had no way of knowingif there was a grounding failure that endangered miners. 

 

            Giventhese facts, I find that the Secretary has proven the violation by apreponderance of the evidence. 

 

**B.   ****Gravity**

** **

The“likelihood” contemplated within the assessment of gravity is that of theinjury that may result from the violation and the hazard to which itcontributes. “Severity” is an assessment of the seriousness of a potentialinjury if it were to occur. 

** **

**1.    ****Likelihood**

 

TheSecretary concedes that injury is unlikely. I find that the violation wasunlikely to cause injury, primarily because the inspector testified that duringinspection, the cited equipment was stationary and no repairs were being performed.I credit that the inspector considered thatthere was no damage to the equipment, and that it was unlikely that a minerwould be exposed to an improperly grounded circuit. Tr. 84–85. Itherefore affirm the assessed likelihood. 

 

**2.    ****Severity**

** **

Inevaluating the severity of a potential injury, the Secretary defines “fatal” as“any work-related injury or illness resulting in death, or which has areasonable potential to cause death.” 30 C.F.R. § 100.3(e) (2022). Importantly,a severity evaluation at this stage assumes the occurrence of the hazard. *SeeConsolidation Coal Co.*, 18 FMSHRC 1541, 1550 (Sept. 1996) (comparingS&S inquiry, which focuses on “the reasonable likelihood of seriousinjury,” with gravity inquiry, which focuses on “the effect of the hazard *if*it occurs”) (emphasis added).

 

Thereis sufficient evidence to find that the severity of this violation is potentiallyfatal. Annual resistance and continuity testing is statutorily mandatedto discover and correct hazardous conditions before miners are injured. Examinersbear the responsibility of protecting miners from identifiable hazards, and itis imperative that mine management ensure all required exams are conducted andreported so that the potential for accidents is minimized. *See Recon Refractory & Constr.*, 36 FMSHRC 2265, 2272 (Aug. 2014)(ALJ Paez) (citing IV MSHA, U.S. Dep’t of Labor, *Program Policy Manual*,Part 21, at 44 (2003)); *Yaple Creek Sand & Gravel*, 11 FMSHRC 1471,1481 (Aug. 1989) (ALJ Morris). 

 

In this case, the tests ensurethat the ground will carry a fault back to the breaker causing it to triprather than shock or electrocute[1] aminer. Tr. 63–64. Withoutthe results of the tests, Respondent had no way of knowing whether thegrounding systems were working properly for the cited equipment. Tr. 63–64, 73, 125–126. 

 

The Inspector testified thatshe considered the high voltage of the water pumps, hoists, and conveyors indetermining that the occurrence of the hazard had a reasonable potential to resultin death. Tr. 70. She also testified that several other factors contributed toher gravity assessment, including Respondent’s failure to ensure the annualcontinuity and resistance tests, the high voltage in the cited equipment, themoist conditions at the conveyors, and the metal grating in the walkway betweenconveyors. Tr. 66–69. The violative systems were highvoltage—either 480 or 2400 volts. Contact with improperly grounded systems withthis high voltage could result in severe burns, shock, or electrocution.

 

Respondentargued that its redundant safety measures—grounding through the system’s feedercable and external grounding for the motors—support a reduction in gravity. Ifind that these systems are insufficient justification for a severity reduction.The redundant safety measures mentioned are aimed at ensuring the systems aregrounded. While these systems may reduce the likelihood of an electrocution, itdoes nothing to reduce the severity of the injury—electrocution—if thegrounding failed.[2]

* *

Additionally, potentialhazards are not eliminated if post-citation testing finds that no hazardouscondition exists. Respondent’s evidence that the systems were operating asintended is irrelevant to the severity determination in this case. The factthat the annual continuity and resistance testing was not completed constitutesa violation regardless of these later findings.

* *

I find that Respondent’sfailure to conduct annual continuity and resistance testing of groundingsystems for the violative equipment exposed miners to a potentially fatalinjury. I find that afatality, while unlikely, could occur due to electric shock or burns resultingfrom contact with this high voltage. Therefore, I affirm the assessed severity.

 

**3.    ****Numberof Persons Affected**

            Theinspector assessed that only one miner would be affected by the hazard. Tr. 70–71.I agree that, logically, one miner would be performing the workplace exam orconducting maintenance along the conveyors. Further, I find it reasonable thatanother miner would not contact the equipment after finding that the otherminer was injured during that activity. I affirm the assessed number of personsaffected.

 

**C.   ****Negligence**

 

            Judgesmay use a traditional negligence analysis, rather than relying upon Part 100definitions. *Brody Mining, LLC*, 37 FMSHRC 1687, 1701–02 (Aug. 2015)(citing *Jim Walter Res., Inc.*, 36 FMSHRC 1972, 1975 n.4 (Aug. 2014); *SellersburgStone Co. v. FMSHRC*, 736 F.2d 1147, 1151–52 (7th Cir. 1984)) (“Part 100regulations apply only to the proposal of penalties by MSHA and the Secretaryof Labor; under both Commission and court precedent, the regulations do not extendto the independent Commission, and thus the MSHA regulations are not binding inany way on Commission proceedings.”). The reasonably prudent person standardshould be that of one “familiar with the mining industry, the relevant facts,and the protective purposes of the regulation.” *Id.* At 1702.

 

I find that negligence was properlyassessed as “moderate.” Respondentis familiar with the mining industry and had knowledge that annual continuityand resistance tests were required. This knowledge was evidenced by the factthat Respondent had performed continuity and resistance tests prior to theissuance of this citation and on other equipment. Tr. 71. The operator shouldhave been familiar with the protective purpose of running the annual tests, anda reasonably prudent person should have known about the violation and acted toremedy it. Nonetheless, Respondent failed to do so. 

 

Respondent’s suggestion at hearingthat this citation was likely a “paperwork violation” is not supported by anyevidence. A paperwork violation exists if a test has been performed, but notdocumented. Here, Respondent’s employees did not provide any evidence of annualtesting and admitted that if there had been testing, it would have beenrecorded. Tr. 138, 149–150.

 

Under continued normal miningoperations, miners would have continued to be exposed to the hazard ofelectrocution with a reasonable potential to cause death. Respondent had not implementedany system to ensure that annual testing was completed, allowing prior workorders to close with no plan in place for them to regenerate. Tr. 72. 

 

Respondent did not offer any evidenceof mitigating circumstances to justify its failure to conduct annual testing. Tr.127. However, in establishing negligence, the inspector considered that testshad been performed on other equipment and that the work orders for the citedequipment had been closed before the tests were conducted. Tr. 71–73; P–4,003. Because closed work orders do not regenerate every year, Respondent didnot receive any reminders to conduct the annual tests. Tr. 72.

 

For these reasons, I affirm theassessed negligence. 

 

**D.   ****Penalty**

 

TheCommission considers the following factors, from Section 110(i) of the Act, inassessing penalties under the Act:

 

[T]he operator’s history ofprevious violations, the appropriateness of such penalty to the size of thebusiness of the operator charged, whether the operator was negligent, theeffect on the operator’s ability to continue in business, the gravity of theviolation, and the demonstrated good faith of the person charged in attemptingto achieve rapid compliance after notification of a violation.

 

30 U.S.C. § 820(i) (2006).

 

TheSecretary has entered Respondent’s violation history [MSHA Directorate ofAssessments, Assessed Violation History Report] into evidence. *See* Ex. P–2.I have reviewed Respondent’s general and repeat violations, and I find that theSecretary has properly considered Respondent’s minimal violation history in hiscalculation. I agree that the Secretary has properly evaluated the size of themine in his calculation. The parties have stipulated that payment of thepenalty will not affect Respondent’s ability to continue in business. Jt. Stip.8.

 

Iaffirm the negligence and gravity as assessed. I find that the violation wasthe result of “moderate” negligence, and that the likelihood of injury was“unlikely,” the severity was “fatal,” and one person would be affected. I foundthat Respondent’s redundant safety measures did not alter the gravityassessment in this case. 

 

Followingthe citation, Respondent abated the citation by completing and recording thecontinuity and resistance test. Ex. P–3, 003. Considering this fact, I findthat the operator demonstrated good faith in achieving rapid compliance afternotification.

 

            Forthe above reasons, I affirm the citation as written and assess a penalty of $530.00.

 

**III.         ****CONCLUSION**

 

            Itis **ORDERED** that Citation No. 6166190 be **AFFIRMED** as issued.

 

It is **ORDERED** that theRespondent pay the Secretary of Labor the assessed penalty of **$530.00**within 30 days of the date of this decision.[3]

 

 

 

 

/s/Michael G. Young

Michael G. Young

Administrative Law Judge

 

 

Distribution(First Class Mail and email):

 

EmeldaMedrano, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S.Dearborn St., Room 844, Chicago, IL 60604, medrano.emelda@dol.gov

 

Arthur M. Wolfson, Esq., Fisher & Phillips, LLP, Six PPGPlace, Suite 830, Pittsburgh, PA 15222, awolfson@fisherphillips.com

----

[1] “Electrocute” traditionally meant“to execute or put to death by electricity.” *See Electrocute*, Webster’s International Dictionary of theEnglish Language Being the Authentic edition of Webster’s UnabridgedDictionary: Comprising the Issues of 1864, 1879, and 1884 (Noah Portered., 1898). However, common usage has broadened to embrace “kill[ing] orseverely injur[ing] by electric shock.” *Electrocute*, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/electrocute(last visited Mar. 15, 2022).

Becausethe hazard here includes both the potential for serious injury and death, Ihave noted each specifically.

[2]AlthoughRespondent’s redundant safety measures may reduce the likelihood ofelectrocution, the Secretary has already conceded that injury was unlikely inthis case. Because that is true, therespondent musteffectively show that the potential for injury is not merely remote, butpractically impossible.

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