Secretary of Labor v. Northshore Mining Company

Plain-English summary

Northshore Mining Company processes taconite into iron pellets at its Minnesota mine site. MSHA cited Northshore because it had not performed required annual continuity and resistance tests on the grounding systems for six conveyors, two surface water pumps, and two counterweight hoists. Judge Michael G. Young rejected the suggestion that the tests might have been performed but not recorded because the company offered no supporting evidence and its witness said completed tests should have been documented. He found an injury unlikely, but affirmed the potentially fatal severity because the 480-volt and 2,400-volt equipment could expose a miner to severe shock, burns, or death if a grounding system failed. He affirmed moderate negligence and assessed the proposed $530 penalty.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 56.12028 and 100.3(e); 30 U.S.C. §§ 815(d) and 820(i)
• Outcome: Citation No. 6166190 was affirmed as non-S&S, unlikely but potentially fatal, with moderate negligence, and a $530 penalty was assessed.
• Key point: Missing test records supported a finding that required annual grounding tests were not performed when the operator offered no evidence that testing actually occurred.

Full text (FMSHRC public release)

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,

2. 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,
128. 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, [email protected]

Arthur M. Wolfson, Esq., Fisher & Phillips, LLP, Six PPG
Place, Suite 830, Pittsburgh, PA 15222, [email protected]

[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, the respondent 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.