Secretary of Labor v. Morton Salt Inc.

Read the official release (fmshrc.gov)

Plain-English summary

The case addressed citations arising from a loader fire, smoke crossing an evacuation route, an atmospheric monitoring outage, a failed high-voltage cable splice, and loose ground above a traveled area at Morton Salt's underground mine. The judge affirmed S&S citations for allowing the known electrical fire hazard and for routing shop-fire smoke across the escape path used by miners. He affirmed the monitoring-system violation but changed it to unlikely, non-S&S, and low negligence because only one outstation lost power and the evidence did not place miners near its affected sensors. He vacated the cable-splice citation because the Secretary did not prove the insulation was inadequate, and affirmed the loose-ground citation. After approving a partial settlement on two other citations, the judge ordered total payment of $28,101.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.4500, 57.4761(b), 57.22301, 57.12013, and 57.3401
• Outcome: Three adjudicated citations were affirmed, one was modified, one was vacated, two were settled, and total penalties were $28,101.
• Key point: Actual exposure to fire smoke supported serious ventilation findings, while the Secretary still had to prove the specific cable condition alleged.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE
LAW JUDGE

721 19 th ST.
SUITE 443

DENVER, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA),

Petitioner,

v.

MORTON SALT INC.,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. CENT 2023-0287

A.C. No. 16-00970-571304

Mine: Weeks Island Mine &
Mill

DECISION AND
ORDER

Appearances:              Tyler Nash, U.S. Department
of Labor, Office of the Solicitor, 525 Griffin Street, Suite 501, Dallas, Texas 75202

Donna
Vetrano Pryor and Daniel Zimmer, Husch Blackwell LLP, 1801 Wewatta Street,
Suite 1000, Denver, CO 80202

Before                         Judge
Simonton

INTRODUCTION

This case is before me on a
petition for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration, against Morton Salt
Inc. (“Morton Salt” or “Respondent”), pursuant to the Federal Mine Safety and
Health Act of 1977 (Mine Act), 30 U.S.C. § 801. [1]
This case involves two 104(a) citations and three 104(e) orders with a proposed
penalty of $36,594.00 against Morton Salt.

The parties presented testimony and
documentary evidence regarding the citations at issue at a hearing held on April
9-11, 2024, in Lafayette, Louisiana. MSHA Inspectors Norman Ryes, Gregory
Sensibaugh, O’Neal Robertson, and MSHA Health Specialist Supervisor William
“Barry” Clark testified for the Secretary. Eric Gaudreau, the mine’s engineering
manager, maintenance manager Jessica Garcia, production supervisors Scott Frith
and Brian Provost, electric general foreman James Adam Schooley, miner Jeb
Dionne, health and safety manager Fadi Qutaish, and electrician Cody Borque testified
for the Respondent. After fully considering the testimony and evidence
presented at hearing and the parties’ post-hearing briefs, I AFFIRM Citation
Nos. 9648939, 9648940 and 9674895 as issued, AFFIRM Citation No. 9673196
as modified to reduce the likelihood of injury or illness to unlikely, reduce
the negligence to low, and to remove the S&S designation, and VACATE Citation
No. 9674873.

STIPULATIONS OF FACT

At hearing, the parties agreed to
the following stipulations:

The parties have settled Citation Nos. 9674888 and 9674891

This docket involves an underground salt mine know as the
Weeks Island Mine and Mill (the “Mine”), which is owned and operated by
Morton Salt.

The Mine, located near New Iberia, Iberia Parish,
Louisiana, MSHA Mine ID No. 16-00970, is a “mine” as defined in § 3(h) of
the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C.
§ 802(h).

The Administrative Law Judge has jurisdiction over this
proceeding, pursuant to § 105 of the Mine Act, 30 U.S.C. § 815.

Morton Salt has been the “operator” as defined in § 3(d)
of the Mine Act, 30 U.S.C. § 802(d), of the mine at which the citation at
issue in this proceeding was issued at all relevant times.

Morton Salt’s operations have affected interstate commerce
at all relevant times.

The assessed civil penalties would not independently affect
Morton Salt’s ability to remain in business. However, given the mine’s POV
status, these citations/orders could result in the mine’s closure.

Tr. 6-7.

III.         
FINDINGS
OF FACT AND CONCLUSIONS

Morton Salt
operates Weeks Island Mine and Mill, a domal salt mine located near New Iberia,
Iberia Parish, Louisiana. Jt. Stip. 2-3. The citations at issue at hearing were
issued by MSHA Inspectors Gregory Sensibaugh, O’Neal Robertson and Norman Ryes
during inspections conducted on October 11, 2022, December 7, 2022, December
12, 2022, and December 28, 2022.

A.     Citation No. 9648939

i.         
Factual
Background and Summary of Testimony

On September 23, 2022, a front-end CAT loader
located in the shop area of the mine caught fire. Tr. 37-38. The vehicle is a
smaller loader used for clean-up work, berm building, and moving material
around the mine. Tr. 613. It had been tagged out on September 17, 2022, approximately
a week prior to the fire, due to suspected electrical problems. Tr. 167, 174. When
equipment is tagged out, the tag is placed where a person can see it, such as
on the steering wheel or the master disconnect switch. Tr. 174. Mechanics who
work on or perform maintenance on tagged-out machines are trained to turn the
machine off once work is complete. Tr. 184. If the power switch is left in an
on position, it could cause a short circuit with no one around to attend to it.
Tr. 63.

Mechanics from Morton Salt and CAT
both worked on the loader while it was tagged out. Tr. 79. Morton Salt
maintains a work order list that shows the sequence of tasks assigned to the
loader with a description of the issue or concern. Tr. 619. Originally, it was
believed that there was an issue with the loader’s batteries, but after new
batteries were installed, it was determined that the batteries were not the
issue. Tr. 78. A Morton Salt employee replaced the batteries on the loader. Tr.167-168,

261. Other parts were ordered to replace the belt tensioners and the idlers.
     Tr. 78-79, 620.

Inspector Greg Sensibaugh testified
that he spoke to the CAT mechanics, Brian Smith and Michael Breaux who told him
that when the belt tensioners and idlers arrived, they installed them, checked
for codes, and then turned the loader off before going to lunch. Tr. 77-79, 168.
When they returned, they saw smoke coming from the battery compartment. Tr. 79,

169. They removed the battery cover and turned the disconnect switch to off to
     stop the smoke. Tr. 79-80. The CAT mechanics explained they then left the switch
     in the off position, but did not disconnect the connection, and the loader
     remained tagged out. Tr. 80, 617. Morton Salt was notified that the loader had
     been smoking and that the loader needed a replacement battery cable and a new
     terminal or junction box. Tr. 617-618. The CAT mechanics did no further work on
     the loader, and there was no record of anyone working on the loader after them.
     Tr. 81, 620. A couple of days later on September 23, 2022, the fire started.
     Tr. 81, 171.

Based on Morton Salt’s
investigation into the fire, the evacuation began immediately after an employee
saw smoke. Tr. 165. Fourteen employees who were underground evacuated using the
primary escape way and the south doors. Tr. 166. During the evacuation, which
was conducted using vehicles, the miners encountered and were exposed to heavy
smoke. Tr. 236. Some of the miners were wearing monitors to test for gases such
as methane and carbon monoxide, which did not go off during the evacuation. Tr.
223-224.

Sensibaugh was called to Weeks
Island on September 23, 2022, after the fire had started. Tr. 30, 38. He used a
gas detector that had been calibrated at MSHA’s field office to take readings
at the mine. Tr. 39-41. These readings reflected that there was elevated carbon
monoxide, which is indicative of a fire, and that there was no methane present.
Tr. 41. Because Weeks Island is a 2a (or gassy) mine and an active fire is an
ignition source for methane, he did not go underground and only went to the
exhaust shaft. Tr. 46, 48, 51.

Inspector Sensibaugh continued his
investigation on September 26, 2022, after the mine had been cleared and it was
safe to go underground. Tr. 49, 52. He took air quality readings underground
and inspected the actions Morton Salt was taking to correct loose roof
conditions caused by the fire. Tr. 49-50. The air quality readings were normal
clean air readings and did not indicate that there was methane. Tr. 50, 135.
There was a bit of residual smoke in an abandoned shop area. Tr. 52-53. Carbon
monoxide was “a little bit elevated” in the shop. Tr. 54, 135.

On September 29, 2022, Sensibaugh returned
again to look at and photograph the loader that caused the fire. Tr. 56-57; Ex.
P-23. Wh en examining the loader, he found that the
disconnect switch was in the “on” position, which was verified by examining a
different loader of the same type. Tr. 59, 95-96. A battery cable and copper
wiring were also left lying across a post. Tr. 97. The power switch’s position
completed the loader’s circuit and the position of the cable and the wiring
allowed the batteries to provide electrical power to the circuit, allowing the
machine to run. Tr. 62. Sensibaugh further testified that the fire could not
have occurred if the switch was in the “off” position or if the batteries were
disconnected because it would have removed the heat source. Tr. 99-100. The
machine had a known short circuit, making it critical to remove or isolate the
battery from the machine before walking away. Tr. 100. He also noted that there
was a lot of salt on top of the battery compartment. Tr. 88; Ex. P-23.

In addition to taking photographs
and inspecting the loader, Sensibaugh also conducted interviews with miners who
had evacuated as a result of the fire. Tr. 59, 77. He learned that miners
encountered heavy smoke when evacuating the mine on the day of the fire and
drove through it in order to exit. Tr. 236; Ex. P-22. The inspector testified
that the safety hazard associated with going through smoke include the
inhalation of carbon monoxide and the possibility that an operator may wreck a
vehicle in the heavy smoke and cause a pileup of others attempting to exit the
mine. Tr. 67-68. Carbon monoxide, as a toxin, can cause a cumulative effect
when it builds up in the bloodstream and cause death hours after exposure. Tr.

44. While the miners were equipped with self-rescuers, which can protect a
    person from carbon monoxide, no one had put one on. Tr. 68, 71,140-143. Additionally,
    an equipment fire can also release other gases in small amounts that can impact
    human health. Tr. 45.

Eric Gaudreau, the engineering
manager at Morton Salt, testified for the Respondent. Tr. 153-154. Previously,
he had worked at a CAT dealership as a mining specialist helping an account
manager to manage a fleet. Tr. 157. Gaudreau was familiar with the loader that
had caught on fire. Tr. 158. He was not at the mine when the fire occurred, but
as part of the mine rescue team, he received a call to be on standby. Tr. 159. After
the fire, he worked with the local CAT dealership during Morton Salt’s investigation
into the fire’s cause to see if there were equipment changes Morton Salt could
make to mitigate the cause of the fire. Tr. 163, 209. CAT ultimately determined
that the equipment did not need modification. Tr. 209.

He also testified regarding his understanding of
the cause of the loader fire, based upon a presentation that he helped assemble.
Tr. 164; P-31. Morton Salt believed that the incident was due to the buildup of
salt leading components to overheat, short circuit, and start a fire. Tr.
172-173, 184. Morton Salt had been aware of the ability of salt to cause short
circuits in electrical components prior to the fire. Tr. 172. At the time of
the incident, it was believed that the batteries had been disconnected, but
“cable memory,” where stiff cables used to a certain position return to that
position, caused the cables to contact the pole of the battery. Tr. 175-177. If
the batteries hadn’t been touching the cable, there would have been no fire
because a short circuit could not occur if the batteries were disconnected. Tr.
177, 183. Gaudreau did not personally examine the loader or speak with the CAT
mechanics or the Morton Salt mechanics. Tr. 171-172.

Morton Salt mechanic Jeb Dionne
serviced the loader prior to the fire. Tr. 245, 253. The loader was moved to
the shop because it was unable to start. Tr. 254, 260. He removed the batteries
from the loader a week before the fire because they were no longer working. Tr.
253, 261. When the fire started, the loader was in the same place it had been
originally parked. Tr. 260.

After the fire, Dionne heard that
the junction box had shorted on the loader and caused the fire by creating
heat. Tr. 256. He testified that the batteries would need to be connected to
start the fire. Tr. 257. Although employees were trained to turn the disconnect
off to ensure there would be no power anywhere on the machine and to prevent
the batteries from dying, it was common for miners to leave the switch on when
they were finished operating it because of “laziness.” Tr. 255, 256, 259-260.

Jessica Garcia, the maintenance
manager at Morton Salt, presented an alternate theory for the cause of the
loader fire. Tr. 613. She testified that this loader fire was the result of a
short circuit, likely due to slight contact with the terminal by something that
would normally connect to the battery and the terminal post. Anything touching
the frame could complete the circuit. Tr. 631. The top cable of the battery,
which comes from the positive terminal, runs through the frame of the loader
from the post and connects to the junction box. Tr. 621-622; Ex. R-II. The
cable on the other battery also runs through the frame but connects to the
negative terminal; the battery was disconnected from this cable. Tr. 622; Ex.
R-II. This turns off the negative side of the battery and ensures that there
cannot be a full circuit. Tr. 622. Garcia testified that with this setup, there
could still be a fire with the disconnect in the “off” position because the
cables could still connect the circuit by touching the post or the frame. Tr.
622-623, 630. The accumulation of salt also could have connected the circuit,
even if the cables were pulled out of the way. Tr. 623. This theory is based on
the premise that the cables were disconnected. Tr. 635. The battery needs
cables to be considered a heat source. Tr. 633. If the cables had been
disconnected from the terminal blocks, that would be an interruption to the
system. Tr. 635.

If the machine was running as it
should, she believed that the battery would not need to be separated from
combustible material and it would not combust under normal operating conditions.
Tr. 625, 627. In a normal operating state, when the switch is off the circuit
is incomplete; turning the switch on completes the circuit and sends power
throughout the system. Tr. 633-634. It would not be possible to operate the
loader without the batteries connected or if the disconnect was in the off
position. Tr. 630. The operator had never received a citation for operating the
loader when the battery is not disconnected or when the disconnect was not in
the “off” position. Tr. 630-631. There were some pieces of equipment at Weeks
Island that did not have disconnect switches and the operator had never
received a citation related to a failure to disconnect batteries for these
vehicles. Tr. 627.

ii.         
Fact
of Violation

The Commission has
long held that “[i]n an enforcement action before the Commission, the Secretary
bears the burden of proving any alleged violation.” Jim Walter Res., Inc. ,
9 FMSHRC 903, 907 (May 1987); Wyoming Fuel Co. , 14 FMSHRC 1282, 1294
(Aug. 1992). The burden of showing something by a “preponderance of the
evidence,” the most common standard in civil law and the standard applicable
here, simply requires the trier of fact “to believe that the existence of a
fact is more probable than its nonexistence.” RAG Cumberland Res. Corp. , 22 FMSHRC 1066,
1070 (Sept. 2000); Garden Creek Pocahontas Co. , 11 FMSHRC 2148, 2152
(Nov. 1989).

On October 11, 2022, Inspector Sensibaugh
issued 104(a) Citation No. 9648939, which alleged:

A
fire occurred on #7 CAT M serial #OJ3R00843 Front End Loader at approximately
6:45 PM on September 23, 2022. The Loader was located in the main shop on the
1400 level. Eighteen miners were underground. The Loader had been in the shop
since 9/17/2022 and was tagged out of service for electrical problems. The last
work order #60623777 on 9/21/2022 was to replace the battery cables and
junction. Post fire the main switch was in the “ON” position and the left
battery cable melted into the terminal and top of battery. Fire was the result
of a short circuit.

Ex. P-21-1.

Sensibaugh designated the citation
as a significant and substantial violation of 30 C.F.R. § 57.4500 that was
reasonably likely to cause an injury that could reasonably be expected to be
“fatal,” would affect eighteen miners, and was caused by Respondent’s moderate
negligence. Ex. P-21-1.

30 C.F.R. § 57.4500 states:

Heat sources
capable of producing combustion shall be separated from combustible  materials
if a fire hazard could be created.

When the inspector conducted his
inspection of the loader, he found the disconnect switch in the “on” position
and the battery cables looked to be connected. Through Jessica Garcia’s
testimony, Respondent contends that a fire event such as this could occur
during normal operating conditions and would not constitute a violation. However,
these conditions were not normal operating conditions because the loader had
been found smoking only a few days prior. Under these circumstances, a
reasonable miner would know to leave the disconnect switch off and any
combustible material far away. Considering this was a machine that was known to
have an electrical issue and that miners were trained to leave the switch in
the off position, I affirm that there was a violation of 30 C.F.R. § 57.4500.

Gravity and S&S

The inspector assessed the hazard
as reasonably likely to cause a fatal injury or illness. During his testimony,
he described how smoke exposure can lead to the inhalation of carbon monoxide
and other toxins. He also testified that driving through smoke can lead to
vehicle pileups, increasing the time of exposure. As miners did encounter smoke
while escaping and did not use self-rescuers, I affirm these designations.

The citation was also designated as
significant and substantial. To establish that a violation is significant and
substantial, the Secretary of Labor must prove: (1) the underlying violation of
a mandatory safety standard; (2) the violation was reasonably likely to cause
the occurrence of the discrete safety hazard against
which the standard is directed; (3) the occurrence of that hazard would be
reasonably likely to cause an injury; and (4) there would be a reasonable
likelihood that the injury in question would be of a reasonably serious nature.
Peabody Midwest Mining, LLC , 42 FMSHRC 379, 383 (June 2020). The
Commission has explained that “the proper focus of the second step of the
[S&S] test [is] the likelihood of the occurrence of the hazard the cited
standard is designed to prevent.” Newtown Energy, Inc ., 38 FMSHRC 2033,
2037 n.8 (Aug. 2016).

I have found that a violation of a
mandatory safety standard has occurred. The second step concerns whether the
violation was reasonably likely to cause the occurrence of a discrete safety
hazard against which the standard is directed, which in this case are fire
hazards. A fire did in fact occur, which generated thick, potentially toxic,
smoke. The inspector interviewed several miners who stated that they had
crossed smoke during the evacuation and that they did not use their
self-rescuers. Additionally, escaping in vehicles through dark smoke that is
difficult to see through may lead to vehicles crashing and causing a pile-up,
delaying evacuation. Based on the facts of the violation, it is reasonably
likely that miners would inhale toxic gases, satisfying the second step. These
types of occurrences are reasonably likely to cause injuries that would be
reasonably serious in nature. I affirm the S&S designation.

iv.         
Negligence

Under the Mine Act, operators are
held to a high standard of care, and “must be on the alert for conditions and
practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30
C.F.R. § 100.3(d). MSHA’s regulations define reckless disregard as conduct
which exhibits the absence of the slightest degree of care, high negligence as
actual or constructive knowledge of the violative condition without mitigating
circumstances; moderate negligence as actual or constructive knowledge of the
violative condition with mitigating circumstances; and low negligence as actual
or constructive knowledge of the violative condition with considerable
mitigating circumstances. 30 C.F.R. § 100.3: Table X.

Sensibaugh assessed the negligence
as moderate. The testimony indicates that miners were trained to leave the
disconnect switch in the off position and that the Respondent knew the loader
had been smoking three days before the fire. The Respondent was also aware of
the ability of salt to build up inside electrical components and cause short
circuits. As sufficient precautions were not undertaken to prevent a fire, I
affirm that the Respondent’s negligence was moderate.

B.     Citation No. 9648940

i.       Factual Background
and Summary of Testimony

In conjunction with
Citation No. 9648939, Inspector Sensibaugh issued Citation No. 9648940 for
exposing miners to toxic gases from the shop fire. Tr. 101. He testified that the
smoke from the fire was ventilated towards where miners from the 1500’ and 1600’
levels were evacuating, exposing the miners to potentially toxic gases. Tr.
120-121. Twelve miners had to cross through smoke to evacuate. Tr. 109.

The Respondent did not
attempt to reverse the air during this fire event. Tr. 131. Inspector
Sensibaugh further testified that it “was evident” there was incorrect routing,
because the operator used alternative routing for the mine shop exhaust in such
a way that it passed through and intersected the escape route. Tr. 108, 149. To
prevent smoke exposure, the air should have been routed somewhere else away
from where miners would need to egress. Tr. 149-150. After the incident, the
operator corrected the routing. Tr. 150-151. MSHA approves ventilation plans
and inspectors review them twice per year, but citations are only issued if a
problem arises. Tr. 127-128.

When the fire occurred,
the mine’s fan was located at the surface, and it had no brake. Tr. 114.
Without a manual brake, it would take at least ten minutes to reverse the fan
without stalling it or causing damage, which Sensibaugh determined would not be
considered rapid reversal in emergency circumstances. Tr. 112, 114-115. There were
additional auxiliary fans underground that only push air around an isolated
area and were not sufficient for rapid reversal. Tr. 125. At some point, Weeks
Island had a fan that was rapidly reversible to comply with the standard, but Sensibaugh
did not know when the operator had that fan or when it was taken out of
service. Tr. 112.

Inspector Sensibaugh
further testified that it is the intention of the standard for miners to not
cross through smoke while evacuating. Tr. 129-130. He designated the citation
as reasonably likely because miners were in direct contact with smoke from the
fire. Tr. 101-102. The severity of the injury from this violation was
designated fatal because exposure to toxic smoke and gases were present and
miners took it upon themselves to drive through smoke they could not see
through and did not don any self-rescue devices. Tr. 102-103. Should
a vehicle operator crash while evacuating, it could cause a pile-up and delay
others exiting the mine. Tr. 67-68. While miners had been trained to use
self-rescuers, which can protect a person from carbon monoxide, no one used
one. Tr. 68, 140-143. One miner opened the package but did not put the
self-rescuer on. Tr. 71. Inhaling carbon monoxide could cause a fatality by
bonding to red blood cells in the blood stream and inhibiting their ability to
carry oxygen through the body. Tr. 103-105. The negligence was assessed as
moderate because there was a bit of mitigation, as the previous management at
the mine had made ventilation changes. Tr. 110, 145. Sensibaugh also thought
that the entire process had to be rapid, not just how long it took to turn the
fans back. Tr. 130. The standard, however, does not have a definition for
“rapid.” Tr. 129, 130.

Eric Gaudreau again
testified for the Respondent regarding this citation. Morton Salt complies with
the standard by situating the exhaust ventilation shaft within the maintenance
shaft and by having a maintenance fan. Tr. 188. The main fan is located at the
surface and is reversible, which he testified is a process that takes around 15
minutes. Tr. 188, 195, 204. Smaller auxiliary fans are placed underground in
active headings to direct flow in areas further away from the exhaust shaft. Tr.
188-189. These fans are focused on daily mining activities to move gases out of
the room. Tr. 189. Air coming into the shop travels in one direction. Tr. 190.

Before reversing the fan,
a manager would need to give approval. Tr. 196, 203, 205. To make that
decision, management would need to know where the fire is, where miners are,
and why reversal is necessary. Tr. 196-197, 203. During an evacuation scenario,
locations of miners working underground may be difficult to pinpoint but miners
will gather at cluster points to use Femco phones to get in contact with people
on the surface. Tr. 197. But because miners may be working anywhere in the
mine, managers need to take time in making the decision to ensure that they
have the right information before proceeding with reversal. Tr. 200.

On the day of the fire,
Morton did not use the reversible fan, as it was determined that reversing the
fan did not make sense based on the fire’s location. Tr. 205, 207. Gaudreau
learned that miners encountered smoke while evacuating during the investigation
into the cause of the loader fire. Tr. 193. In his testimony, he confirmed that
there was a way to route the air so that it would not cross over the miners’
escape route. Tr. 226-227, 229.

ii.              
Fact
of Violation

On October 11, 2022, Sensibaugh
issued 104(a) Citation No. 9648940, which alleged:

Routing
air to the exhaust system. If used as an alternative, routing the mine shop
exhaust air directly to an exhaust system shall be done so that no person would
be exposed to toxic gases in the event of a shop fire. Inadvertently the mine
shop exhaust air directed to the exhaust system routed through 9 drift to the

3 shaft intersects “E” which is the escape route to the #4 shaft. During the

evacuation of a mine fire September 23, 2022, twelve miners traveled through
toxic smoke during their escape.

Ex. P-35-1.

Sensibaugh designated the citation
as a significant and substantial violation of 30 C.F.R. § 57.4761(b) that was
reasonably likely to cause an injury that could reasonably be expected to be
“fatal,” would affect twelve miners, and was caused by Respondent’s moderate
negligence. Ex. P-35-1.

30 C.F.R. § 57.4761(b) states:

Routing air to
exhaust system. If used as an alternative, routing the mine shop exhaust air
directly to an exhaust system shall be done so that no person would be exposed
to toxic gases in the event of a shop fire.

Respondent contends that the
citation should be vacated for two reasons. First, Respondent argues that there
was no violation because there were two alternative means of ventilation for
the mine shop. R. Br. at 16. Concerning this first argument, the parties do not
dispute that miners were exposed to smoke while evacuating along the primary
escape route. This is explicitly prohibited by the standard, and while it may
be true that Respondent had an alternative method to ventilate the mine, they
did not use it.

Second, if there is a finding of a
violation, Respondent argues that they did not have fair notice of the
requirements of the standard because the regulation does not lay out whether a
mine may use two separate independent means of ventilation and because MSHA had
approved of their ventilation plans in the past without issuing a citation or
otherwise raising a concern that the plan did not comply with the standard. R.
Br. at 16. The plain language of the statute expressly states that no person
should be exposed to toxic gases. This is enough to put the Respondent on
notice that no matter how they designed their ventilation plan, they needed to
ensure that miners were not exposed to toxic gases while escaping.

I do not find either of these
arguments persuasive and I affirm that there is a violation of the standard.

iii.            
Gravity and S&S

The inspector assessed the hazard
as reasonably likely to cause an injury or illness. It is reasonably likely a
fire will produce toxic gases that can lead to serious injury. Additionally,
the smoke in this case was so thick that evacuating miners could not see the
LED lights in the shop. If a vehicle were to crash in this type of smoke, it
could lead to a pile-up and delay evacuation. He designated that the injury
would reasonably be expected to be fatal, because of the potential for exposure
to toxic gases and the effect of carbon monoxide. I affirm these designations.

The citation was also designated as
significant and substantial. The Secretary has proven that a violation of a
safety standard has occurred. The safety hazards posed by this violation are
similar to Citation No. 9648939, which are the inhalation of potentially
dangerous gases and the possibility of a vehicle pile-up from driving through
thick smoke. As heavy smoke was ventilated across the primary escape path and
miners encountered this smoke while escaping, I find that step 2 of the
analysis is satisfied. An occurrence of one of these safety hazards is
reasonably likely to cause reasonably serious injuries. The S&S designation
is affirmed.

iv.            
Negligence

Sensibaugh assessed the negligence
as moderate. Respondent argues that there are several factors that should
mitigate the negligence and change the designation to low. R. Br. at 21. First,
although the feature was not used during the fire event, the mine’s fan was
capable of rapid reversal. Second, the Respondent was also not put on fair
notice as to the standard’s requirements. Third, the Respondent also maintains
a written plan of action for fire evacuation. As discussed above, I do not find
the Respondent’s second argument persuasive. While I agree that the written
plan of action and the reversible fan are mitigating factors, it is not enough
to reduce the negligence to low given the risks associated with traveling
through thick smoke and Eric Gaudreau’s testimony that there was a way to route
the exhaust so it would not intersect with the miners’ escape route. I affirm
the negligence as moderate.

C.     Citation No. 9673196

i.       Summary of
Testimony

Morton Salt maintains an Atmospheric Monitoring System (“AMS”) at Weeks
Island to monitor methane levels. Tr. 467. The system is comprised of sensors
placed underground on the closest non-permissible piece of equipment to detect
gases where miners are working. Tr. 467-468, 510. The sensors are grouped and
are powered by one of three outstations. Tr. 499, 703-704. When gas is
detected, it is reflected on the monitor by a squiggly line. Tr. 494. When
methane levels of 0.25% are detected, a low alarm will sound. Tr. 723-724. At
methane levels of 0.5%, the system will shut down the power in the mine and an
alarm will sound near the monitor screen, which is located on the surface. Tr.
722-723. At any methane level lower than 0.5%, the
monitor screen must be read by a person at the surface in order to know the
methane level in the mine. Tr. 722. Morton Salt assigns an employee to check
the AMS during his shift. Tr. 734.

There are limited circumstances when a miner may be
underground without a functional AMS. When the system goes offline or needs to
be calibrated, one miner is permitted to be underground near a sensor in order
to communicate the sensor’s reading to the surface and ensure it is the same as
the reading on the monitor. Tr. 505-506. Miners may also go underground after a
blast in order to do a gas check and make sure that the mine is safe. Tr.
508-509. Additionally, as long as there is no drilling or cutting and the
miners are checking the air on a consistent basis, they are allowed to be
underground while the AMS is down. Tr. 507-508. In these circumstances, they
use handheld monitors to check for methane. Tr. 508.

MSHA Inspector O’Neal
Robertson inspected Weeks Island in response to a hazard complaint made to
MSHA. Tr. 461, 466. In part, the complaint alleged that miners were working
underground without a functional AMS. Tr. 466; Ex. P-49. When he arrived at the
mine, he inspected the AMS room, where he saw that monitors were only working
on the 1400’ level. Tr. 474. Outstation 2 of the AMS at Weeks Island was unable
to give an audible warning to miners underground for two to three hours; the
system had shut down because the batteries died. Tr. 467-468, 504-505; Ex.
P-51. During this time, miners were sent underground in diesel-powered
equipment. Tr. 468. On the night of the incident, the inspector learned that
some levels of methane had been detected in the mine, but it was below the
limits of what the law requires to prevent miners from going underground. Tr.
503, 515; Ex. P-5. It is normal that there are low levels of
gas that do not reach the threshold at Weeks Island. Tr. 518.

Production supervisor
Brian Provost informed the inspector that rooms had been shot and blasted that
night. Tr. 476-477. After blasting, Morton Salt performed a fire boss and used
a monitor to check the methane levels in the mine. Tr. 502. The inspector did
not look at the readings that were taken during the fire boss or have any
concerns with the way the fire boss was conducted. Tr. 502, 518. However, the
inspector was concerned that the fire boss only checked the rooms that were blasted,
and there was a possibility that methane of unknown levels could have been in
other rooms that weren’t cleared. Tr. 515.

There was a period of time where the system was
operating on back up power and a period of time when outstation 2 went offline
completely. Tr. 521-522, 526-527. Miners were underground when outstation 2 was
not functioning, although the inspector did not know how many miners were on
shift at the time. Tr. 476, 523, 526. The workplace exams reflect that miners
were underground doing active work during the time when the AMS was powered by
backup batteries, but that work was unlikely to liberate methane. Tr. 489,
494-495, 504. Without working monitors, however, miners could inadvertently
take diesel-powered equipment with a high exhaust system into a methane-rich
environment. Tr. 510. Diesel equipment can emit particulate from the exhaust
system that can be an ignition source for methane. Tr. 509. To ensure the
safety of the miners, the inspector would have kept everyone on the surface
until the operator knew that all the monitors were working with power in its
regular function. Tr. 536-537.

Robertson issued a citation because miners were working
underground without a functioning AMS system. Tr. 490; Ex P-48. Tr. 490. As a
colorless, odorless gas that is explosive, there are many hazards associated
with methane. Tr. 465. The AMS at Weeks Island was determined to not be fully
functional at the time of the citation because it was being powered by backup
batteries. Tr. 465. While the regulations do not define what is fully
functional or explicitly state that using the AMS on battery backup does not
make it fully functional, the inspector interpreted the regulations to mean
that the system should run on electricity and that a battery backup is intended
as a safety feature so that the system is still operational for evacuating
miners in the event of electricity failure. Tr. 465-466, 504, 520. Operating on
backup battery power is an indicator that there are components that failed and
the system is not working properly. Tr. 521. There was also a period of time
where outstation 2 was without power completely. Tr. 526-527. He designated the
citation as reasonably likely to cause an injury or illness because miners
could enter an area with non-permissible equipment and potentially cause an
ignition. Tr. 469. He assessed the injury as fatal because a methane ignition
is usually fatal and causes an explosion and the negligence as moderate
crediting the operator for training their employees. Tr. 469-470.

Brian Provost, the production supervisor on duty at the time
of the citation, testified for the Respondent. He was working the graveyard
shift on December 3, 2022. Tr. 696. The mine had been blasted on the previous
shift to knock down some loose rock, which killed the power in the mine. Tr.

697. When the power tripped in the mine, the previous shift’s supervisor called
     an electrician on the surface to restore power. Tr. 698. When that did not
     work, the supervisor returned to the surface. Tr. 698. There were loaded faces
     that were then shot. Tr. 719. Provost was not on shift for any of the blasting.
     Tr. 719. He did conduct the fire boss which did not indicate that there were
     any gases. Tr. 698-699, 734. If he had found methane, he would not have allowed
     miners to enter the area if he had gotten high methane readings. Tr. 734.

After the fire
boss, Provost called down the maintenance supervisor and an electrician to
start the generator to power the methane monitor system. Tr. 699. Outstation 1
was on generator power while outstations 2 and 3 were on battery backup. Tr.

704. Provost testified that the system works the same, no matter what type of
     power it is on. Tr. 705. If the AMS detects methane and needs to power off, it
     can still do so on battery power. Tr. 705. The Femco phones were working on
     that day, and people on the surface could give a warning to those underground
     if needed. Tr. 705-706.

After ensuring
that the AMS was online and active, he called the crew down at 3:00 a.m. Tr.

699. When the crew came down, Provost gave them their job assignments, which
     were on different floors. Tr. 700. Approximately eight to eleven miners were
     under his supervision that night, but there were other miners underground that
     were not under his supervision. Tr. 714. Provost was in communication with the
     maintenance supervisor regarding where the miners’ locations were underground.
     Tr. 714. The job assignments that night were not likely to liberate methane.
     Tr. 700-701.

Provost testified
that the time shown on the monitor was incorrect and outstation 2 actually went
offline at 4:43 a.m. rather than at 3:43 a.m. as the inspector believed. Tr.

707. While the inspector believed that the AMS was without power for two or
     three hours, the actual time was closer to an hour and a half. Tr. 726. When
     outstation 2 went offline, it was no longer able to detect methane, and someone
     would need to see the monitor to know when it went offline because there would
     be no alarm in that situation. Tr. 724-725. When Provost learned that the power
     source to outstation 2 failed at 6:00 a.m., everyone underground was brought to
     the surface. Tr. 708, 721. One miner had been working in the 1600’ level of the
     mine, the area that is monitored by outstation 2, but he had been picked up
     before the outstation went offline. Tr. 736. To get to one of the areas where
     miners were working, they would need to go through an area of sensors that were
     powered by outstation 2. Tr. 731-732. Miners did not have, and are not required
     to, have methane monitors on their person. Tr. 733.

ii.              
Fact
of Violation

On December 12, 2022, Robertson
issued 104(e)(1) Citation No. 9673196, which alleged:

The
atmospheric monitoring system (“AMS”) for the mine was found not fully
functional. The atmospheric monitoring system was not able to give audible or
visible warnings to the miners working underground for approximately 2-3 hours
for the graveyard shift on 12/03/2022. The crew was called underground at
approximately 3:00 to work underground without the mine having power and the
(AMS) on battery backup power. Miners were sent in the working areas in the
1500-, and 1600-foot levels on diesel powered equipment to remove non
permissible equipment from the areas and to perform other tasks. This condition
left the miners working in these areas with unknown mine hazards at the time
they were in the working areas, this condition exposes the miners to fatal
injuries if a fire or a methane release was to occur without having a warning
device.

Ex. P-48-1.

Robertson designated the citation
as a significant and substantial violation of 30 C.F.R. § 57.22301 that was
reasonably likely to cause an injury that could reasonably be expected to be
“fatal,” would affect ten miners, and was caused by Respondent’s moderate
negligence. Ex. P-48-1.

30 C.F.R. § 57.22301 states in its
entirety:

(a)    An atmospheric
monitoring system shall be installed to provide surface readings

of methane
concentrations in the mine atmosphere from underground locations. Components of
the system shall be approved by MSHA under the applicable requirements of 30
CFR parts 18, 22, 23, and 27; or be determined by MSHA under 30 CFR part 18 to
be intrinsically safe or explosion-proof.

(b) Atmospheric
monitoring systems shall— (1) Give warnings on the surface and underground when
methane at any sensor reaches 0.5 percent or more, and when power to a sensor
is interrupted. Warning devices shall be located so that they can be seen and
heard by a person designated by the mine operator; and (2) Automatically
deenergize power in affected areas, except power to monitoring equipment
determined by MSHA to be intrinsically safe under 30 CFR part 18, when methane
at any sensor reaches— (i) 1.0 percent in a Subcategory I–A or V–A mine; or
(ii) 0.5 percent while persons are underground and 1.0 percent during blasting
in a Subcategory II–A mine. Timing devices are permitted to avoid nuisance
tripping for periods not to exceed 30 seconds, except during blasting or the
ventilation time following a blast in a Subcategory II–A mine.

(c) Atmospheric
monitoring systems shall be checked with a known mixture of methane, and
calibrated, if necessary, at least once every 30 days. Certification of
calibration tests shall be made by signature and date. Certifications of tests
shall be retained for at least one year and made available to authorized
representatives of the Secretary.

The Secretary argues that there was
a violation of the standard because miners were sent underground while the AMS
was operating on backup battery power and that the battery backup is supposed
to function as a safeguard when miners are already underground should the
system lose power. Nothing in the plain reading of the standard, however,
defines what it means to have a “fully functional” AMS or states that it is a
violation if the AMS is operating on backup battery power. Further, testimony
from Brian Provost demonstrates that the AMS functions the same no matter what
type of power it is using. While it may be more prudent to reserve battery
power for emergency situations, a plain reading of the standard does not
mandate a violation for operating on a backup power source.

The evidence does indicate,
however, that outstation 2 lost power at 4:43 a.m. and that the mine was not
evacuated until 6:00 a.m. As miners were underground for one hour and fifteen
minutes while an outstation was without power, leaving those sensors unable to
detect methane, I find there is a violation of 30 C.F.R. § 57.22301.

iii.            
Gravity and S&S

The inspector assessed the hazard
as reasonably likely to cause a fatal injury or illness. Ex. P-48-1. As
discussed above, the Secretary of Labor did not prove that the entire AMS was
not functional for two to three hours. In fact, the evidence demonstrates that
one outstation was without power for an hour and fifteen minutes. This particular
outstation powered sensors for the 1600’ level and two sensors on the 1500’
level and there was no indication that miners were working on this level while
the outstation was down. The only miner on the 1600’ level had been picked up
prior to the outstation losing power and there was no evidence that miners were
near the two sensors on the 1500’ level while the power was out. I am lowering
the likelihood of injury or illness from reasonably likely to unlikely. The
inspector did testify regarding the danger of methane as an ignition source. Therefore,
I affirm the severity of the injury as fatal.

The citation was also designated as
significant and substantial. However, the analysis fails at the second step, as
the facts of the violation are not reasonably likely to cause the occurrence of
a discrete safety hazard. As a result, I am removing the S&S designation.

iv.            
Negligence

The negligence was assessed as
moderate, with the inspector crediting the Respondent for training. However,
the production supervisor was not notified that the outstation had lost power
until 6:00 a.m., at which point he immediately evacuated the mine. I credit
this quick action and am lowering the negligence to low.

D.     Citation No. 9674873

i.      Summary of
Testimony

Inspector Norman Ryes, who has nine years of experience as an
inspector, issued this citation when a splice, or repair, in a 4160-voltage
cable failed. Tr. 263-266; Ex. P-1-1. The cable needed to be spliced after a
falling scale damaged it the night prior to the splice’s failure. Tr. 266, 269.
The cable was located near the man cage, which is accessed by miners every
shift to enter and exit the mine. Tr. 270-271. When the splice failed, there
was no evidence of copper vapors, exposed copper conductors or copper splatters
in the cable, which can be hazards associated with splice failure. Tr. 355-356.
The inspector did not know the volume of copper vapor that was generated or
expelled by the fault, or if there was any copper vapor generated at all. Tr.
357

Ryes was at the
mine in the shop area when the splice failed, causing the shop to lose power.
Tr. 266. He spoke with Adam Schooley, the electrical general foreman at Weeks
Island, about the cause of the failure in the splice. Tr. 271-272, 362. Ryes
testified that Schooley told him that the splice failed due to oil, and that
any traces of oil in the splice was from the electrician’s carelessness. Tr.
271-272, 362. Electricians are supposed to use clean hands when doing this type
of splice to a high voltage cable. Tr. 280.

When the splice
was brought to the surface, Ryes examined it but did not take custody of it. Tr.
276-277, 291. He recorded notes and information about the splice, such as the
megger reading. Tr. 277. While he did not understand the meaning of the
information, he recorded it to consult with others at MSHA about the areas he
was unfamiliar with. Tr. 277-278. He took photos of the splice that depict the
broken strands of the ground wire, the crimps, and showed where the outer
jacket was pulled apart. Tr. 281-282; Ex. P-3. The splice was positioned
vertically and could not be laid flat. Tr. 280. Normally, a splice would be
performed by lying the cable flat, but this splice was made while the cable was
hanging in the air. Tr. 281.

Inspector Ryes
returned with another inspector, O’Neal Robertson, to help with the
investigation. Tr. 291. Inspector Robertson took a video cutting the splice
open. Tr. 291. Respondent’s electrician Rob Freeman, production supervisor Scott
Frith, and a miners’ representative were present from Morton Salt when the
video was taken. Tr. 291. Inspector Ryes did not interview Cody Borque, the contracted
electrician who repaired the cable. Tr. 361.

Ryes interpreted
the regulation to mean that if a splice fails, it is an automatic violation.
Tr. 290. The fault came at the splice because it was the weakest part of the
cable. Tr. 290. Ryes testified that the cable was not mechanically strong
because there was a fault. Tr. 365. He assessed the citation as reasonably
likely, because the splice was hanging against a handrail where miners waiting
to enter the cage may lean against it. Tr. 273. If miners had been present when
the splice failed, they may have been subject to an arc flash that could cause
blindness, eyesight damage, hearing damage, or burns. Tr. 274. However, he did
not know if an arc flash did in fact occur during this fault. Tr. 363. The negligence
was assessed as moderate because Morton Salt decides who can perform splices
and the inspector was told only permitted qualified electricians do so. Tr.
275, 360. After the investigation was conducted, the citation was modified to
the whole standard rather than just subpart a, and the cited practice or
condition was modified to say that the insulation on the splice was not equal
to or greater than the original. Tr. 294-295; Ex. P-1-2. Inspector Ryes also
modified the citation to indicate that the only area that lost power was the
shop. Tr. 295.

William Barry
Clark is a safety specialist supervisor with one and a half years of experience
at MSHA and testified for the Secretary regarding this citation. Tr. 375.
Previously, he worked as an electrical safety specialist and performed general
inspections along with specialty electrical audits. Tr. 376. He has been an
electrical specialist his entire tenure at MSHA and has an electrical
certification. Tr. 379-380.

He has conducted
approximately 350 4160-voltage cable installations and 100 4160-voltage cable splices.
Tr. 428-429. A splice on a 4160 cable is a very specific task that not all
electricians are trained to perform. Tr. 447-448. Clark explained in his
testimony the importance of following the instructions in the splice kit. Tr.
388-389. The insulation applied to the splice must be at the same degree as
what came from the manufacturer on the original cable. Tr. 388. The splice
needs to be cleaned, the crimps need to be staggered so they don’t rip
together, and the shielding must be put back on so there is not excess current
buildup and so the integrity of the insulation will hold. Tr. 389.
Additionally, the cable should be flat to make performing the splice easier.
Tr. 452. When the failure in the splice occurred at Weeks Island, he was
contacted by Inspector Ryes because he has more experience and Ryes wanted a
better understanding of the hazards associated with 4160 splice failures. Tr.
381.

Clark did not physically
inspect the cable and only reviewed photographs and the video taken of the
splice being cut open. Tr. 382, 430, 432; Ex. P-4, P-10. He determined that the
splice was not mechanically strong due to the way the crimps were made. Tr.
398, 409-410. The crimps on the failed splice were knotted and close together.
Tr. 413, 416. It was obvious to Clark where the splice failed because there was
carbon track, and the insulation was gone. Tr. 405, 407. When asked on cross
examination whether the failure would be instantaneous Clark repliedit “could
be, could not be, depending on the current.” Tr. 459. He testified that there
was no shielding on the splice because he could not see remnants of shielding
on the failed splice in the photographs. Tr. 410; Ex P-4. He also testified he
did not see a semiconductor in the photographs taken of the failed splice. Tr.
400-401; Ex. P-4. The semiconductor shield also appeared to be missing, which
helps the insulation process bleed off excess voltage and current. Tr. 401. He
did not have measurements of the insulation on the original cable or on the
splice at the time of failure but testified that the failure indicated the
splice was not insulated properly. Tr. 412, 432. The splice kit used to repair
the splice would have had these materials and the instructions on the splice
kit stated that a shield should be applied. Tr. 402-404, 425; Ex. P-8.

Clark’s
interpretation of the cited standard requires that the splices be mechanically
strong, have equal to or greater than the same insulation value as what the
manufacturer was, and all the bonding be mechanically strong. Tr. 385. For a
splice to be mechanically strong, the crimps need to be made correctly, or the
splice will blow apart. Tr. 386-387. The effects of a bad crimp include not
getting the full surface area, which can cause the current conductor to come
out of the splice and form a direct short. Tr. 387, 408-409. When the crimps
are stacked together rather than staggered, the insulation will also not work,
and the splice will short out. Tr. 414; Ex. P-66-C. He did not participate in
the decision to write the citation. Tr. 432. However, in support of issuing
inspector Ryes’ decision to issue the citation, Clark testified on cross
examination that he thought section (b) of the standard which specifically
addresses insulation was violated and that it was “possible” other sections of
the standard may have been violated as well. Tr. 431.

Regarding the
hazards posed by a failed splice, Clark testified that electrocution, the flow
of electricity through a person, can cause defibrillation or otherwise cause a
fatality. Tr. 389-390. A failed splice can also create an arc flash, an
explosion that occurs from phases coming into contact with each other or the
ground. Tr. 391. Arc flashes can cause burns, hearing loss, and the inhalation
of toxins or molten metal. Tr. 391-392. This can cause fatalities or other
long-lasting effects. Tr. 392. Inspector Ryes told him that the splice was
located at the cage when it blew. Tr. 416. Clark was concerned because the
miners congregate at the cage each shift. Tr. 417. If someone was within 15 to
20 feet when it blew, they could be exposed to the hazards of an arc flash. Tr.
417-418. There are also multiple metal objects around the cage, and if an arc
flash caught part of the metal, it could have caused it to go flying and injure
someone. Tr. 418.

Copper flakes were also visible in
the photos, which presents a hazard to miners if inhaled. Tr. 408.

Inspector Clark
also gave testimony regarding his experience with instantaneous trips or
relays. Tr. 419. Depending on the current applied, the trip can be one to two
seconds, but it could be possible that any instantaneous trip can occur in less
than a second if it has the right technology. Tr. 421-422. Clark did not know
what kind of technology this cable had. Tr. 422. Injuries from an arc flash,
however, can occur in less than one second. Tr. 423. Even with an instantaneous
relay of 16 milliseconds, like Morton Salt claims to have on the cable with the
failed splice, splice failure can still create an arc flash depending on other
variables such as maintenance. Tr. 435.

Cody Borque, a
master electrician at Dixie Electric and the person who performed the failed
splice, testified for the Respondent. Tr. 638-639, 641. He has been an
electrician for 16 years and has performed approximately 300 4160 voltage
splices. Tr. 639, 642. Borque performed the splice using a splice kit that he
had assembled, and he testified that he made sure the insulation in the splice
kit was at least equal to the original. Tr. 646-647. When he performed the
splice, he cleaned the interior of the cable using a substance known as Lectra
Clean and some clean rags. Tr. 644. Borque understood the importance of clean
hands when working on a splice because moisture or oil on the hands can cause
the splice to fail. Tr. 643, 675. Borque testified that he always wears gloves
when splicing. Tr. 675. The splices on the repair were staggered, which he
stated is not necessary to do, and he testified that he would not have
completed the repair without using a shield. Tr. 674-676. The cable was hanging
vertically about five and a half feet above the ground while it was repaired.
Tr. 642, 673-674. The splice took one hour and forty-five minutes to two hours
to repair, which Borque stated is the fastest he could complete the repair
while still doing a good job. Tr. 649.

Borque became aware
there was a failure in the splice eighteen hours after he repaired it. Tr. 648.
He believed that the splice was mechanically strong, because a bad splice would
have blown right away. Tr. 649. He could not say why the failure occurred. Tr.
649-650. Because there was an instantaneous trip monitor on the cable, he did
not believe there was any risk of electrocution because a failure would have
tripped the circuit. Tr. 650, 658.

In December 2022,
Borque gave a written statement to Morton Salt that detailed his understanding
of the sequence of events that occurred when he made the splice at the request
of Adam Schooley. Tr. 654-655, 659; Ex. R-L. He testified that this statement
was accurate. Tr. 657. Notably, while he wrote that he cleaned the splice
itself, he never wrote that he cleaned his hands prior to working on the
splice. Tr. 655; Ex. R-L. He also did not mention shielding in his statement but
testified that he did shield the splice and that it was visible in photographs
of the failed splice. Tr. 660, 673; Ex. R-L. The shielding in the photo of the
failed splice was black, because it was covered in soot, but was silver
originally. Tr. 666-667. He testified that he should have written down that he
used shielding in his statement. Tr. 673.

James “Adam”
Schooley oversees all electrical, underground maintenance, surface maintenance,
construction, mine advances, power moves, safety and discipline of
electricians, and the scheduling, managing, and materials at Weeks Island. Tr.
742-743. He was responsible for hiring Dixie Electric and has worked with Cody
Borque in the past. Tr. 743. He assigned Cody Borque to repair the power cable eighteen
hours before the splice failed because the cable had been hit by a scale. Tr.
753-754. Splice kits on site at the time of the incident, were put together by
Cody Borque, including the instructions and the materials. Tr. 752-753; Ex.
R-J. Borque had told him he did the splice correctly when Schooley questioned
him about it. Tr. 760.

When Schooley
arrived, MSHA had already finished investigating the failed splice and Schooley
could only look at photos of the failure. Tr. 754. He did examine the cable
after it was cut up during the MSHA inspection and did not see any problems
with the splice or anything to indicate why the splice failed. Tr. 757, 759,
760, 776. He later performed a Root Cause Analysis of the failed splice which
concluded that Borque had correctly performed the splice. Tr. 757; Ex. R-I. It
was determined that the splice had 3/16 th insulation, which is
greater than the 1/8 th insulation on the original cable. Tr. 759.
The cable failed eighteen hours after the splice, which indicated to Schooley
that the splice had in fact been done correctly because otherwise the failure
would have been instant. Tr. 761-762. He testified that he did not tell the
inspector that there was oil in the splice. Tr. 766. He did state that while it
was a possibility that oil had been in the splice, there was no way to tell.
Tr. 767. In his testimony, Schooley stressed that cleaning is the most
important step in repairing a cable. Tr. 744.

Schooley
speculated that moisture got in the cable while it was being repaired, because
the shaft could have accumulated moisture over time due to the humidity. Tr.
776-777. If something like oil or moisture got in the splice, it could not be
detected by the naked eye. Tr. 787. During the repair, the splice would have
been exposed to open air. Tr. 787-788. Moisture causes tracking, which is
electricity tracking to another phase or the ground and causing it to creep.
Tr. 789. If moisture had gotten in, then it would have taken time for the
splice to fail and the cable to blow. Tr. 790. A cable is supposed to be dry
and clean during a splice and he has never known moisture to get inside of a
cable previously. Tr. 778-779.

The cable in
question had a relay with instantaneous monitoring set to trip at 16
milliseconds should a failure be detected. Tr. 763-764. Schooley did not
believe there was a risk of electrocution or arc flash because of this
instantaneous trip system and the lack of contact with metal. Tr. 764-765. There
was no evidence of an arc flash, charring, or shrapnel and no one reported an
arc flash. Tr. 765. While the cable had a hole in it, if an arc flash had
occurred it would have been completely open. Tr. 766.

ii.      Fact
of Violation

On December 7, 2022, Inspector Ryes
issued 104(e)(1) Citation No. 9674873, which alleged:

Permanent
splices and repairs made in power cables, including the ground conductor where
provided, shall be mechanically strong with electrical conductivity as near as
possible to that of the original. The splice in the 4160 volt cable which
supplied power to the shop area located as the #4 shaft near the man cage was
not mechanically strong as that of the original. On 12/05/2022 at 18:05 there
was failure in the splice causing power outage in the mine underground. The
cable had been previously repaired. Miners congregate at this area (#4 shaft @
1400ft level) on every shift (3) to enter and exit the mine. This condition
exposes mines to fatal injuries from toxic copper vapors along with extreme
heat and arc flashing.

Ex. P-1-1.

Ryes designated the citation as a
significant and substantial violation of 30 C.F.R. § 57.12013(a) that was
reasonably likely to cause an injury that could reasonably be expected to be
“fatal,” would affect one miner, and was caused by Respondent’s moderate
negligence. Ex. P-1-1.

Notably, the citation was modified the next day
on December 8, 2022. Ex. P-1-2. The cited standard was adjusted to the entirety
of 30 C.F.R. § 57.12013, rather than subpart (a). The condition and practice
portion of the citation was also modified to read:

The permanent splice and repair made to
the 4160 volt cable which supplies power to the maintenance shop area located
at the #4 shaft at the 1400ft level near the man cage was not insulated to a
degree at least that of the original. On 12/05/2022 at approximately 6:05pm
(CST) the splice failed causing power outage in the mine underground. Miners
congregate at this location for various purposes as it serves as the primary
entry and exit to the 1400ft level of the mine, and free for access throughout
each shift for the miners as needed. This condition exposes miners to fatal
injuries from toxic copper vapors along with extreme heat and arc flash.

Ex. P-1-2.

30 C.F.R. § 57.12013 states that:

Permanent splices
and repairs made in power cables, including the ground conductor where
provided, shall be (a) mechanically strong with electrical conductivity as near
as possible to that of the original; (b) insulated to a degree at least equal
to that of the original, and sealed to exclude moisture; and, (c) provided with
damage protection as near as possible to that of the original, including good
bonding to the outer jacket.”

At hearing, testimony from the
Secretary’s witnesses focused primarily on the strength of the splice’s mechanical
crimps and subpart (a) of the standard. However, the cited condition or
practice was modified to focus only on subpart (b), the insulation of
the splice on the repaired cable, and not on the mechanical strength of the
splice. Clark, who did not physically inspect the cable and relied on reviewing
photographs and video of the splice being cut open, testified that it was possible
for the other sections, subparts (a) and (c), to have been violated. I find
this testimony insufficient to meet the Secretary’s burden of proof by a
preponderance of evidence. Respondent’s witness Schooley who actually observed
and conducted a root cause analysis of the splice after MSHA cut it open testified
convincingly regarding subpart (b) of the standard, the adequacy of the
insulation on the splice. His testimony was consistent with Borque’s testimony
describing in detail how he performed the splice. Together Schooley and
Borque’s testimony in this regard was straightforward, unequivocable and
persuasive.

It is critical to note the splice
failed eighteen hours after the repair was conducted. This fact is
uncontroverted. The Secretary did not adequately address this fact in the
presentation of the case. Respondent’s witnesses testified persuasively and
without equivocation that if there had been an issue with the shielding or
insulation, or if the splice was not mechanically strong, the splice failure
would have been instant. While Clark did state on cross examination a crimp
failure, “could be or could not be” instant depending on the current no other
testimony or evidence was proffered by the Secretary to address the
eighteen-hour delay. Specifically, the Secretary failed to address or provide
an adequate explanation as to how a splice with insufficient insulation or that
was not mechanically strong could fail eighteen hours after repair as opposed
to instantaneously. I find that the Secretary did not meet her burden to prove
that the insulation on the failed splice was not equal to or greater than the
insulation on the original, in accordance with the modified practice or
condition. Accordingly, I vacate the citation.

E.     Citation No. 9674895

i.      Summary of
Testimony

Respondent’s current safety superintendent Scott Frith was a
production supervisor when this citation was issued. Tr. 540-541. He explained
on cross examination that scales are any kind of loose material that is ready
to fall from a certain height and are hazardous because they could lead to
injury depending on the size and thickness. Tr. 598. Training documents from
Morton Salt state that there is an inability to predict when scales can fall
which make them one of the most serious hazards. Tr. 599; Ex. P-62. To combat
the hazards of scales, the mine should be examined to identify scales and other
dangerous conditions.

Inspector Ryes
testified that a ground control examination is a special examination to
identify and test hazards that takes place after blasting and should be
performed by trained experienced personnel. Tr. 297, 298, 335. Hourly miners
can perform ground control examinations if they have been trained and are
experienced. Tr. 329. Mines aren’t required to document ground control
inspections. Tr. 330, 583. A workplace examination on the other hand examines
for all kinds of hazards and should be done before work takes place in the area
the miner is assigned to work. Tr. 297. Workplace and ground control
examinations are separate examinations, however, if they are performed by
someone qualified, they may take place at the same time. Tr. 335-336, 583. Morton
Salt’s new miner training, refresher training, and annual training all address
and review ground control issues, procedures for working safely, and hazard
recognition. Tr. 339-341; Ex. R-W.

Ryes issued this
citation after finding several ground conditions near the screen plant that
were obvious and hazardous. Tr. 296; Ex. P-11. He first found loose ground that
had fallen from a scale near tower 3 and the screen plant. Tr. 298-299; Ex.
P-17. The loose ground was right in front of the door to the MCC, which houses
electrical equipment and is accessed every shift. Tr. 313-314. When the
inspector identified the conditions from the ground using his spotlight, he
climbed a ladder to get a better view. Tr. 300-301, 308-309. He identified a crack
that had opened up the higher he went, indicating that the condition had
existed for a while. Tr. 301, 321. The inspector testified that while he was
using his spotlight, when he first observed the conditions, the conditions
still could have been seen without turning on the spotlight and were obvious.
Tr. 308, 309-310. The inspector had the operator put up barrier tape, around fragments
that had fallen on the ground. Tr. 310.

It was significant
to Inspector Ryes that the conditions were near the MCC, where miners go in and
out of the building. Tr. 310. One person was doing clean up in the area and
there was another obvious condition on the other side of the room where miners
were working. Tr. 311-312. The miners present were not trained to do ground
control examinations and were only trained to do workplace examinations. Tr.
297, 337. Because the conditions were so obvious, it appeared that no one had
conducted ground control examinations in the area. Tr. 319-320. If they had
done a proper ground control examination, the area would have been barricaded
off. Tr. 312. The inspector did not know if someone had observed and checked
the scales prior to the inspection. Tr. 349.

Ryes reviewed the workplace
examination cards that showed that the miners had looked for ground conditions.
Tr. 330-332. Ex. P-18, P-19. A miner who spoke to the inspector said that they are
trained to look for trip hazards and scales when they get to the job site. Tr.

322. Miners also informed the inspector that they can only see what their
     equipment allows; they had only cap lamps and not spotlights. Tr. 296. While
     miners do shine their lights on the ribs, the cap lamps limit how far they are
     able to see. Tr. 322. Previously, miners had requested better lights, which
     were only provided to management. Tr. 323. The inspector also spoke to
     temporary supervisor Steven Hebert about the ground control issues in the area.
     Tr. 298. Hebert told the inspector that everyone is required to do an
     examination before work takes place. Tr. 299. He confirmed that miners do not
     carry spotlights, and that if a miner’s light does not illuminate a hazard,
     they probably will not look there otherwise. Tr. 299-300.

Frith, who was a
production supervisor at the time the citation was issued testified that to
comply with the cited standard, Morton Salt checks and tests for anything found
that is questionable and by training their employees to inspect and examine the
grounds. Tr. 579. Everyone at Weeks Island is qualified to examine ground
conditions, and Morton Salt maintains a list that is provided to MSHA of
employees who are qualified to test ground conditions. Tr. 575, 577, 579; Ex. R-S.
Miners are trained to observe conditions from the ground level, although they
are free to go higher if they think it is necessary. Tr. 604, 610-611. If a
miner finds a concern for them while doing ground control, they are trained to
try and take care of it, or otherwise barricade the area and report it to their
supervisor. Tr. 586-587. Additionally, miners have work stop authority when
they encounter a condition they feel uncomfortable with to seek out a
supervisor or fellow employee to help them manage the concern. Tr. 608-609.
Miners are not required to carry a spotlight, but they have access to them upon
request. Tr. 562, 602. Spotlights are stocked in the storeroom and a request
for a stronger light has never been refused. Tr. 562, 587.

Additionally,
Frith explained Morton Salt provides training on workplace examinations, which includes
looking at ground conditions underground. This training occurs during new miner
training, refresher training, or during safety meetings. Tr. 549, 555; Ex. R-W.
Miners are quizzed throughout the training to check their understanding of the
material. Tr. 556-557. Frith did not know the process for verifying when a miner
has enough experience to test for ground conditions. Tr. 608. Morton Salt was
not required to provide any additional training in order to abate the citation.
Tr. 580. In addition to training, the mine’s safety unit meets once per week
and covers a variety of topics during their meetings. Tr. 553-554. The topics
may include workplace examinations, equipment inspection, prevention of
accidents, hazard recognition, and barricades. Tr. 555; Ex. R-X.

Safety rules are
enforced through coaching and discipline. Tr. 559. Management conducts audits
underground to ensure that miners are performing their workplace examinations
and miners incur corrective action or discipline for failing to complete
workplace examinations. Tr. 549, 559-560; Ex. R-BB. Morton Salt further
incentivizes miners for finding and reporting safety defects through a rewards
program. Tr. 558; Ex. R-V.

Frith accompanied
the inspector when the citation was issued. Tr. 581. Concerning the ground
conditions observed by the inspector, Frith did not believe that the scales
were obvious or that they constituted loose ground. Tr. 584-585, 600. He
testified that scale was only noticeable from the third or fourth floor of the
deck and it would be difficult for a miner to identify the condition from the
ground. Tr. 603-604. When Morton Salt employees tried to remove the scale, they
could not remove it with scaling boards or airbags and no material came down.
Tr. 585. On the day of the citation, workers had conducted workplace
examinations, including the ground conditions in the area. Tr. 581-583; Ex.
P-18, P-19.

Frith also
testified about an investigation Morton Salt conducted into Inspector Ryes
regarding comments Ryes made about the firing of his nephew. Tr. 567-574. However,
during the hearing it was revealed and is undisputed that Ryes’ nephew was terminated
on March 10, 2023, three months after the citation was issued. Tr. 595-596; Ex.
P-11-1.

Fadi Qutaish, a
health and safety manager at Morton Salt, also testified for the Respondent.
Tr. 791-792. He has 14 years mining experience. Tr. 792. As part of his job
responsibilities, he regularly interacts with MSHA inspectors. Tr. 793. He
testified that Morton Salt did not have to do any new training to abate the
ground control training citation. Tr. 795. He gave the list of qualified
employees that could test ground control to Inspector Ryes. Tr. 795; Ex. R-S. He
also tried to provide training documents to the inspector to prove that there
were people present who were trained and qualified to test for ground
conditions when the citation was issued. Tr. 797; Ex. R-T. All miners are
trained to examine ground conditions. Tr. 798. While they are new, they are
paired with an experienced miner until they are comfortable performing their
job duties, which includes testing for ground conditions. Tr. 798.

ii.      Fact
of Violation

On December 28, 2022, Inspector
Ryes issued 104(e)(1) Citation No. 9674895, which alleged:

Persons experienced in examining and
testing for loose ground shall be designated by the mine operator. Appropriate
supervisors or other designated persons shall examine and, where applicable,
test ground conditions in areas where work is to be performed, prior to work
commencing, after blasting, and as ground conditions warrant during the work
shift. There were scales and loose ground conditions found on the north rib
near tower #3 between the MCC and the take up located in the screen plant
underground that were not identified prior to work commencing in the immediate
area. This condition exposes miners to fatal injuries if the loose ground were
to fall while miners were in the area.

A written Notice of Pattern of Violations
No. 9679401 was issued by MSHA on 12/01/2022.

Standard 57.3401 was cited 4 times in two
years at mine 1600970 (4 to the operator, 0 to a contractor.)

Ex. P-11-1.

Ryes designated the citation as a
significant and substantial violation of 30 C.F.R. § 57.3401 that was
reasonably likely to cause an injury that could reasonably be expected to be
“fatal,” would affect one miner, and was caused by Respondent’s moderate
negligence. Ex. P-11-1.

30 C.F.R. § 57.3401 states that:

Persons
experienced in examining and testing for loose ground shall be designated by
the mine operator. Appropriate supervisors or other designated persons shall
examine and, where applicable, test ground conditions in areas where work is to
be performed, prior to work commencing, after blasting, and as ground
conditions warrant during the work shift. Underground haulageways and
travelways and surface area highwalls and banks adjoining travelways shall be
examined weekly or more often if changing ground conditions warrant.

I credit the inspector’s testimony as
consistent and unwavering. Any potential bias that the inspector may have developed
occurred after the citation was issued. Therefore, I place no weight on the
testimony provided regarding Morton Salt’s investigation into inspector Ryes
and any possible comments that may or may not have been made regarding the
firing of his nephew.

Ryes testified that he first
identified loose fragments on the ground. When he investigated the source of
these fragments, he discovered scales that were located 50 to 60 feet above the
ground. While it is clear that the Respondent does train its miners to inspect
for ground conditions and there is a group of qualified miners who can test for
ground conditions, the fragments indicate that this area was not sufficiently
examined. I find that there was a violation of the cited standard.

iii.      Gravity
and S&S

The inspector assessed the hazard
as reasonably likely to cause a fatal injury or illness. Ex. P-11-1. The
inspector testified that the scale was located 50 to 60 feet above the entrance
to the MCC, which is accessed at least once per shift. Additionally, there were
fragments that had already fallen underneath the scale. Based on these facts, I
affirm the designations.

The citation was also designated as
significant and substantial. A violation of a mandatory safety standard has
occurred, satisfying the first step in the analysis. The cited standard is
meant to prevent the hazard of scales and other hazards from falling onto
miners. As part of the scale had already fallen, it is reasonably likely that
this safety hazard would occur, satisfying the second step. The scales here
were located 50 to 60 feet above the ground near the MCC, frequently traveled
by miners. If the scales were to fall on a miner below it would likely result
in a fatality satisfying steps three and four of the S & S criteria. I find
that all four steps of the S &S criteria have been met.

iv.      Negligence

The negligence was assessed as
moderate. The evidence demonstrated that the Respondent maintains a group of
miners who are qualified to test for ground conditions and provides training to
all miners regarding how to identify loose ground conditions. With these
mitigating factors in place, I affirm the moderate negligence designation.

F.     PENALTY

It is well
established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act . Sellersburg
Stone Company , 5 FMSHRC 287, 291 (Mar. 1983). The Act requires that in
assessing civil monetary penalties, the Commission ALJ shall consider the six
statutory penalty criteria:

(1) the operator’s history of previous violations, (2)
the appropriateness of such penalty to the size of the business of the operator
charged, (3) whether the operator was negligent, (4) the effect on the
operator’s ability to continue in business, (5) the gravity of the violation,
and (6) 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).

For Citation No.
9648939, the Secretary proposed a regularly assessed penalty of $9,211.00.
Morton Salt does not have a history of these violations, as this was the only
violation in the history report. The parties stipulated that this penalty will
not individually impact Morton Salt’s ability to continue in business. I find
that this S&S violation was reasonably likely to result in a fatal injury
and was the result of Morton Salt’s moderate negligence. Morton Salt
demonstrated good faith by updating the ventilation plan so that smoke would
not cross the evacuation route in the event of future fires. In light of these
considerations, I find that the proposed penalty of $9,211.00 is appropriate.

For Citation No.
9648940, the Secretary has proposed a penalty of $9,211.00. Morton Salt does
not have a history of these violations, as this was the only violation in the
history report. The parties stipulated that this penalty individually will not
impact Morton Salt’s ability to continue in business. I find that this S&S
violation was reasonably likely to result in a fatal injury and was the result
of Morton Salt’s moderate negligence. Morton Salt demonstrated good faith by adding
ventilation curtains. In light of these considerations, I find that the
proposed penalty of $9,211.00 is appropriate.

For Citation No. 9673196, the
Secretary proposed a regularly assessed penalty of $12,012.00. Morton Salt does
not have a significant history of previous violations. The parties stipulated
that this penalty will not individually impact Morton Salt’s ability to
continue in business. As discussed above, I find that this non-S&S
violation is unlikely to result in fatal injury and is a result of Morton
Salt’s low negligence. In light of these considerations reducing the likelihood
of injury from reasonably likely to unlikely and the negligence from moderate
to low, I find that a penalty of $2,000.00 is appropriate.

For Citation No. 9674873,
the Secretary proposed a regularly assessed penalty of $3,080.00. As discussed
above, I find that the Secretary did not prove that cited practice or condition
was a violation of the standard. This citation is vacated.

For Citation No. 9674895,
the Secretary proposed a regularly assessed penalty of $3,080.00. Morton Salt
has a history of four previous violations. The parties stipulated that this
penalty individually will not impact Morton Salt’s ability to continue in
business. I find that this S&S violation was reasonably likely to result in
fatal injury and was the result of Morton Salt’s moderate negligence. Morton
Salt demonstrated good faith by quickly attempting to abate the citation. In
light of these considerations, I find that the proposed penalty of $3,080.00 is
appropriate.

Listed below is a
summary of the penalty amounts for the adjudicated citations.

Citation/

Order No.

Originally
Proposed Assessment

Judgment Amount

Modifications

9648939

$9,211.00

$9,211.00

Affirm as Issued

9648940

$9,211.00

$9,211.00

Affirm as Issued

9673196

$12,012.00

$2,000.00

Modify
Injury/Illness from “Reasonably Likely to “Unlikely”

Modify Significant
and Substantial from “Yes” to “No”

Modify Negligence
from “Moderate” to “Low”

Reduction in
Payment

9674873

$3,080.00

$0.00

Vacate

9674895

$3,080.00

$3,080.00

Affirm as Issued

TOTAL

$36,594.00

$23,502.00

G.   
PARTIAL SETTLEMENT

The parties
have filed a motion to approve partial settlement regarding the two settled
citations. The originally assessed amount for these two actions was $14,834.00
and the settlement amount is $4,599.00. The settlement includes:

Citation/

Order No.

Originally
Proposed Assessment

Settlement
Amount

Modifications

9674888

$10,235.00

$0.00

Vacate

9674891

$4,599.00

$4,599.00

Affirm as Issued

TOTAL

$14,834.00

$4,599.00

The Secretary
has vacated Citation No. 9674888. The Secretary’s discretion to vacate a
citation or order is not subject to review. See, e.g., RBK Constr. Inc. ,
15 FMSHRC 2099 (Oct. 1993).

The parties
have submitted facts in support of the proposed changes. I have considered the
representations and documentation submitted and I conclude that the proposed
settlement is appropriate under the criteria set forth in section 110(i) of the
Act. The motion to approve partial settlement is GRANTED , the citations
contained in this docket are MODIFIED as set forth above.

H.   
ORDER

It is hereby ORDERED that
Citation Nos. 9648939, 9648940 and 9674895 are AFFIRMED as issued and
Citation No. 9673196 is AFFIRMED as modified to reduce the likelihood of
injury or illness to unlikely, reduce the negligence to low, and to remove the
S&S designation. Citation No. 9674873 is VACATED. Morton Salt, Inc.,
is ORDERED to pay the Secretary the total sum of $28,101.00 within
40 days of this order. [2]

/s/
David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (Electronic and certified mail)

Tyler Nash, U.S. Department of Labor, Office of the
Solicitor, 525 S. Griffin Street, Suite 501, Dallas, TX 75202, [email protected]

Donna Vetrano Pryor, Husch Blackwell LLP, 1801 Wewatta
Street, Suite 1000, Denver, CO 80202, [email protected]

[1] In this decision,
the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s
exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. P–#,” and “Ex. R–#,”
respectively.

[2]
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.