Secretary of Labor v. Maryland Energy Resources, LLC

Plain-English summary

MSHA found undersized electrical conductors serving battery chargers at Maryland Energy Resources' Casselman Mine, including melted receptacles and repeated replacements, and also found that required examination records for 14 chargers had not been kept for at least eight months. The two actions were issued under section 104(d)(1) as S&S and unwarrantable. The settlement converted both to section 104(a) citations, changed the likelihood to unlikely, removed S&S, and reduced each $2,648 penalty to $349, for an 87% total reduction from $5,296 to $698. Judge Moran described the electrical and recordkeeping hazards as serious and the inspector's original findings as well supported, but approved the agreement under Commission precedent limiting settlement review.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.503 and 77.502
• Outcome: Both actions were converted to section 104(a), modified to unlikely and non-S&S, and settled for $698.
• Key point: The Judge strongly criticized the 87% reductions and the removal of S&S and unwarrantable designations but found the settlement information sufficient under controlling Commission precedent.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

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SECRETARY OF LABOR ## MINE SAFETY AND HEALTHADMINISTRATION (MSHA), Petitioner
v.

MARYLAND ENERGY RESOURCES, LLC,Respondent |

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CIVIL PENALTY PROCEEDING
Docket No. YORK 2023-0024 A.C. No. 18-00780-567820
Mine: Casselman Mine
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DECISION APPROVING SETTLEMENT

Before: Judge Moran

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

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9250036 |
$2,648.00 |
$349.00 |
Modify Injury or Illness to Unlikely, Modify S&S Designation to No, Modify Type of Action to 104(a), Modify Type of Issuance to Citation
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9250037 |
$2,648.00 |
$349.00 |
Modify Injury or Illness to Unlikely, Modify S&S Designation to No, Modify Type of Action to 104(a)
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[Citation
No. 9250036],
issued as a (d)(1) order, alleged a now-admitted violation of 30 C.F.R. §
77.503. Titled “Electric conductors; capacity and insulation,” it provides “[e]lectric conductors shall be sufficient in size and
have adequate current carrying capacity and be of such construction that a rise
in temperature resulting from normal operation will not damage the insulating
materials.”

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

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

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

Petition for civil penalty at 9 (emphasis added).

To terminate the (d)(1) order:

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

Id. at 10.

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

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

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

The Battery Chargers in the Cart
Charging Building and the Shop are not [frequently
examined, tested, and properly maintained by a qualified person to assure safe
operating conditions.]Norecord of the examinations for the 14 battery chargers in the
Cart Charging Building and the Shop are being kept. The chargers have been in
use at the mine for at least 8 months.

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

Petition for civil penalty at 5 (emphasis added).

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

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

Id. at 7.

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

Analysis

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

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

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

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

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

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

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

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

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

Id.
at 522

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

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

Id. at 10.

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

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

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

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

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

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

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

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

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

/s/
William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Chris
A. Weaver, CLR, U.S. Dept. of Labor, MSHA, 604 Cheat Road, Morgantown, WV 26508
([email protected])

R.
Henry Moore, Esq., Fisher & Phillips, LLP, Six PPG Place, Suite 830, Pittsburgh,
PA 15222 ([email protected])

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

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

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