FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER

875 GREENTREE ROAD, SUITE 290

PITTSBURGH, PA 15220

TELEPHONE: (412) 920-2682

FAX: (412) 928-8689

March 20, 2012

DECISION

Appearances:             Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, Suite 844, Chicago, IL for the Secretary

                                    R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway  Tower, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA for the                                            Respondent

Before:                        Judge Harner

            This civil penalty proceeding was held pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802 et seq. (2000), (the “Act”). This case involves only one citation. The parties presented testimony and documentary evidence at the hearing held in Duluth, Minnesota, on July 6, 2011. Briefs have been filed by both parties and they have been duly considered.

BACKGROUND AND SUMMARY OF EVIDENCE

            Northshore Mining Company (“Northshore” or “Respondent”) is engaged in the operation of a surface mine that extracts iron ore. Its operation is located in St. Louis County, Minnesota. The mine is subject to regular inspection by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant to section 103(a) of the Act, 30 U.S.C. § 813(a).

           At the hearing, the parties entered into the following stipulations: Tr. 11-12

            1.         Northshore is an “operator” as defined in Section 3(d) of the Mine Act, at  the mine at which the citation at issue in this proceeding was issued. 30 U.S.C. § 802(d).

            2.         Northshore is subject to the jurisdiction of the Mine Act.

3.This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its administrative law judges pursuant to Sections 105 and 113 of the Miners Act. 30 U.S.C. §§ 815 and 823.

            4.         The individual whose signature appears in Block 22 of the citation at issue  in this proceeding was acting in his official capacity and was an authorized  representative of the Secretary of Labor when the citation was issued.

            5.         Payment of the proposed penalty for the subject citation will not affect Northshore’s ability to remain in business.

            6.         A duly authorized representative of the Secretary served the citation and  the termination of the citation upon Respondent’s agent at the date and  place stated therein as required by the Mine Act and the citation and termination may be admitted into evidence to establish its issuance.

            7.         The parties stipulate to the authenticity of all exhibits, but not to the truth or the relevance of the matters asserted therein.

            8.         The Assessed Violation History Report reflecting the history of violations of the Respondent is an authentic copy and may be admitted as a business record of MSHA. See Exhibit 1.

            9.         Citation Number 6493272 is an authentic copy of the citation at issue in this proceeding. See Exhibit 3.

            10.       Northshore demonstrated good faith in the abatement of the citation.

            As previously noted, this docket contains only one citation (Citation No. 6493272) that is alleged to be a violation of the Secretary’s mandatory health and safety regulations. For the most part, there is no dispute as to the salient facts underlying the citation.

A. Respondent’s Equipment at Issue

            This matter involves the operation of a P&H Model 2800XPC Electric Cable Shovel (the “Shovel”), which has been designated by Respondent as #103. The Shovel is a very large piece of equipment, approximately fifty-five to sixty feet in height that was manufactured by P&H specifically for Respondent. Tr. 115. The Shovel sits on tracks which allow it to move forward or backward. Tr. 35. The Shovel housing sits on a main center pan which allows the shovel to rotate either clockwise or counterclockwise; and a large bucket attached to the Shovel’s front permits the bucket to load ore onto trucks. Tr. 35, 38-39. The Shovel has an enclosed housing cabin on top containing the various controls and the operator’s cab. Tr. 35. This cab is accessed by climbing up two sets of stairways from ground level. Tr. 116-117. The Shovel has propel, swing, hoist, crowd and gear functions and is electrically powered by 7200 volts on a trailing cable that comes from Respondent’s main electrical switch house. Tr. 34-36, 40; Ex. 9. The Secretary’s Exhibits 4-8 and Respondent’s Exhibit F-2 depict the Shovel and its various components.

            Specifically at issue in this case is the disconnecting of electrical power when mechanical work, such as repairing or replacing the teeth on the bucket, has to be performed on the Shovel. Tr. 42, 136. Mechanical maintenance is performed frequently on the bucket, occurring as much as two to three times per day or ten to twenty times per week. Tr. 136. As noted, the power to the Shovel is provided by a 7200 volt trailing cable from the main switch house. Tr. 40. Once the electrical power cable reaches the Shovel, it is then routed to a main transformer power line which controls the Shovel’s work functions and to an auxiliary transformer power line which controls the Shovel’s lights, heat, air conditioning, etc., the so-called housekeeping functions of the Shovel. Tr. 44. Each of these lines has a knife blade switch which, when opened, shuts off electrical power to the respective main or auxiliary transformer lines. Tr. 83-84.

            After Respondent acquired the Shovel from P&H, Ryan Bush, Respondent’s Electrical Coordinator, Dean DeBeltz, its then Safety Representative, and Jeff Lamourea from P&H developed a policy to be followed when various maintenance or repair activities were being performed on the Shovel. Tr. 127. The policy provided that before the bucket could be repaired, the control supply circuit breaker and the relay supply circuit breaker should be locked out, a test start should be performed, and then each person working on the Shovel would put his own lock on a lock box. Tr. 129-130. This policy was set forth in the control room located on the first level of the Shovel. Ex. A. Exhibits 8 and F-8 depict the control supply circuit breaker and the replay supply circuit breaker utilized by Respondent in “locking out” the Shovel while mechanical work was performed on the bucket. Tr. 39.

B. The Citation

            On January 19, 2010, as a result of an E01 inspection, MSHA Inspector John C. Koivisto (“Koivisto”) issued Citation No. 6493272 to Northshore for a violation of 30 C.F.R. § 56.12016. The citation, Ex. 3, alleges that:

Company #103, P&H Model 2800 Electric Cable Shovel: On 1/11/10 a bull gang mechanic was observed working on the “Dutchman” portion of the shovel bucket. A spot-check of the shovel lock-out indicated that he had locked out the “control supply circuit breaker” and the “relay supply circuit breaker” as per company procedure. Subsequent investigation revealed that only control power was de-energized and locked out versus main power. This condition exposed personnel to moving machine hazards. Company personnel involved in developing this procedure, reportedly were un-aware of the hazard of locking out only control power. The company shovel lockout procedure has reportedly been in effect for about 1 year.

The inspector found that an injury was reasonably likely to occur, that the injury could reasonably be expected to be fatal, that the violation was significant and substantial, that one person would be affected, and that the violation was a result of moderate negligence on the part of the operator. The Secretary proposed a civil penalty in the amount of $1,026.00.

            The regulation alleged to be violated is 30 C.F.R. § 56.12016 which provides as follows:

Electrically powered equipment shall be deenergized before mechanical work is done on such equipment. Power switches shall be locked out or other measures taken which shall prevent the equipment from being energized without the knowledge of the individuals working on it. Suitable warning notices shall be posted at the power switch and signed by the individuals who are to do the work. Such locks or preventive devices shall be removed only by the persons who installed them or by authorized personnel.

            On January 21, 2010, the citation was terminated by MSHA when Northshore “ceased the practice of only locking out control power and began requiring lockout of main power on 1/19/10. The written company procedure has also been updated.” Ex. 3, B.

C. The Secretary’s Evidence

            Koivisto testified that he has been employed by MSHA as a mine inspector since July 2005. Tr. 21. He has a Bachelor’s Degree in Biology from the University of Minnesota at Duluth and a certificate in safety and health administration from a local community college. Tr. 22. Before coming to work for MSHA, he worked for many years at taconite plants, including approximately twenty-seven years at Hibbing Taconite Company, where he held various positions of increasing responsibility in the safety area. Tr. 22-23. Although Koivisto is not an electrical expert, he did receive training in basic electrical principles at the MSHA training facility in Beckley, West Virginia. Tr. 26-27.

            As to the citation at issue, Koivisto testified that on January 11, 2010, which was a Monday, he was on a regular inspection of the Northshore Mine when he observed one individual working on the Dutchman portion of the Shovel’s bucket. Tr. 29. Koivisto was accompanied on his inspection by Dean DeBeltz (“DeBeltz”) from Northshore’s Safety Department. Tr. 29. Koivisto did not observe any problems with the mechanical work being done on the Dutchman and he and DeBeltz then went up into the Shovel and looked at the two lock-outs in place to prevent the shovel from moving and discussed Respondent’s procedure. Tr. 30. Specifically, the procedure used by Northshore, and observed by Koivisto that day, involved the control supply circuit breaker (“CSCB”) and the relay supply circuit breaker (“RSCB”) being locked out. Tr. 30. This procedure is called locking out control power. Tr. 32. Koivisto testified that he didn’t think much more about this the remainder of that work week, but the next time he was in his office on January 19, 2010, it struck him that “something wasn’t right with [Northshore’s] lock out; that how could they be locking out main power with two little breakers, which I later learned were what, 110- and 240-volt breakers like you would have on a lighting panel.” Tr. 31. He then discussed the procedure used by Northshore with a colleague inspector who is the electrical expert in his office and this inspector also agreed that the procedure was not correct. Tr. 31.

            Later that same day, January 19, Koivisto returned to Respondent’s facility and met again with DeBeltz and also with Ryan Bush (“Bush”), the Electrical Coordinator, and Terry Nanti (“Nanti”), Area Manager of Maintenance. Tr. 29, 31-32. Koivisto told them of his concerns that main power was not being locked out and that the CSCB and RSCB were locking out control power only. Tr. 31-32. Some discussion ensued about Respondent’s procedure and Koivisto finally told them that he was issuing a citation. Tr. 32.

            Koivisto testified at the hearing that he believed Respondent’s procedure in locking out only the two circuit breakers presented a safety hazard, as there could be an inadvertent or unplanned activation or energy on an electrical current that would result in movement of the Shovel. Tr. 41. He further testified that, at the time, he believed that the violation was “significant and substantial” because usually when this type of shovel equipment is taken down for maintenance, there are many employees present doing a variety of maintenance tasks. Tr. 42. As further support for his conclusion, he stated that the procedure was in place for a year and that employees do not always follow procedures, especially when there are several of them, and they could be harmed if the main power was not locked out. Tr. 42. At the hearing, Koivisto testified that he now believed it “unlikely” that an incident would have occurred, but that it was still a violation of a safety standard. Tr. 43.

            Koivisto further testified that he assessed the degree of negligence as “moderate” because Northshore officials had established a procedure when they got the new equipment which they believed was correct, i.e. locking out control power rather than main power. Tr. 43-44.

            The Secretary called William J. Helfrich (“Helfrich”) as its expert witness. Helfrich is MSHA’s Chief of the Mine Electrical Systems Division, a position he has held since 1991. Tr. 74; Ex. 10. This section of MSHA is responsible for supporting MSHA inspectors and the industry as a whole with respect to electrical regulations. Tr. 74. Helfrich, who is an electrical engineering graduate of Pennsylvania State University and a registered professional engineer in the state of Pennsylvania, has been employed by this division of MSHA since 1975. Tr. 76-77; Ex. 10. His extensive experience includes, inter alia, various mine accident investigations, testing of electrical equipment and instructing other engineers concerning electrical issues. Tr. 74-75, 79; Ex. 10. He has familiarity with lock-out/tag-out procedures for shovels, including those manufactured by P&H. Tr. 78. Significantly, Helfrich has been involved in the discussion and drafting of MSHA’s electrical regulations since at least 1977 or 1978. Tr. 75-76; Ex. 10.

            Helfrich credibly testified that the rationale in enacting mandatory standard § 56.12016 is to ensure that persons who are performing mechanical work on electrical equipment can make sure that the equipment is de-energized even though such persons may not be knowledgeable as to the electrical components of the equipment. Tr. 81-82. In this regard, he noted that there are two hazards that are protected by this standard: accidental movement and electrocution. Tr. 82. Thus, he testified that the standard is intended to cover both mechanical (movement) and electrical hazards. Tr. 81-82.

            To de-energize the shovel, Helfrich testified that two steps have to be taken. Tr. 207. First, the shovel has to be disconnected from its power source and second, there has to be either visual confirmation that the conductors are separated or the line has to be tested with a meter to insure that there is no electrical current present. Tr. 207.

            When asked if he had an opinion on Respondent’s policy of locking out the CSCB and RSCB, Helfrich testified that the intent of the regulation was that the main power cable was de-energized and, therefore, locking out the CSCB and RSCB was insufficient because there was no visual determination that the circuit was open and therefore de-energized. Tr. 83, 85-86, 88-89. Helfrich also opined that Respondent’s policy of locking out the CSCB and RSCB was inadequate because given the complexity of the equipment, any number of faults could occur that would cause the equipment to start up and move. Tr. 86. Specifically, he listed lightening strikes, water, rodents, vibration and defective wiring insulation. Tr. 88-89.

            Finally, Helfrich testified as to general electrical principles. Tr. 95. He testified that “de-energization” means “dead” or no power, relying on the definition of the term in the dictionary of the Institute of Electrical and Electronics Engineers. Tr. 95. Helfrich also testified that the best practices policy of MSHA with respect to lock-out/tag-out is to not rely on control power, but always lock out main power. Tr. 96.

D. The Respondent’s Evidence

             Ryan Bush, Respondent’s Electrical Coordinator, testified that he has occupied his current position for a year and half and had previously held the position of Electrical Planner. Tr. 112-113. In his current position, he is responsible for supervising a crew of twelve employees who perform electrical tasks, including maintenance of the electrical components on the shovels. Tr. 112. Bush has a two-year degree in electronics from Eveleth Vocational Technical College. Tr. 114. Bush testified that Respondent had a total of four 2800 shovels at its mine and three of them were the newer XPC models that had been built by P&H for Respondent’s operation. Tr. 115. With the help of Lamourea of P&H, Bush and DeBeltz developed a procedure for locking out the CSCB and the RSCB when employees were working on the bucket teeth, which procedure had been posted adjacent to the circuit breakers. Tr. 127-128, Ex. A, pp. 3-4, F-7. Prior to the citation being written, this procedure called for employees performing mechanical work on the bucket to lock out the CSCB and RSCB, run a test start of the shovel and put their individual locks on a box near the circuit breakers. Tr. 130-133; Ex. F-11, F-12, F14. Bush also testified that when the bottom stairway that runs from the ground to a mid-point walkway on the shovel is in a down position, the shovel can be started but cannot move to perform crowd, propel or hoist functions as the brakes will not release. Tr. 117-121. Before the shovel can operate and during operation of the shovel, the first or bottom stairway must be pulled up level with the walkway. Tr. 117.

            Bush testified that on the day the citation was written, he tried to explain the procedure to Koivisto and show him the electrical prints, but he did not think that Koivisto was too interested. Tr. 134-135. He did not recall telling Koivisto that the procedure only locked out control power, but when asked by Respondent counsel if the procedure de-energized the main transformer, he replied, “In a functionality of it, yes, it does.” Tr. 134.

            Bush also testified that a method of de-energizing the shovel was to turn off the knife blade switch, but that such a procedure was more difficult as it required appropriate clothing and carried a risk of arcing. Tr. 135-136. He also stressed that only an electrician or an electrical technician could turn off the knife blade switch, whereas a mechanic or other qualified employee could lock out the circuit breakers. Tr. 147-148. The procedure of turning off the knife blade switch presents operational problems for Respondent since the dipper on the Shovel has to be locked out up to twenty times per week for maintenance and an electrician must perform the task, even if he must be summoned from other areas of Respondent’s operation. Tr. 136. In this latter instance, Respondent would have to assess the importance of the repair of the Shovel versus the electrician’s need in other areas of Respondent’s operation. Tr. 147-148. Finally, Bush testified that there are two knife blade switches, the first one controls the hoist, crowd, propel and the other functions, while the second auxiliary knife blade controls the heat and light functions of the Shovel. Tr. 148.

            Brian Gsell testified as the Respondent’s expert witness. Gsell currently works for Kilgore Engineering as a Senior Electrical Engineer where he typically performs post-failure evaluations of electrical equipment in various industries not limited to mining. Tr. 167-169; Ex. E. He holds a Bachelor’s Degree in Electrical Engineering Technology from the University of Hartford (1981) and a M.S. degree in Engineering Science from Rensselaer Polytechnic Institute (1992) and has twenty-nine years of experience in the electrical engineering field. Tr. 169-170; Ex. E. Since 2003, Gsell has specialized in the investigation of residential, commercial and industrial accidents involving electrical system or component failures and damage. Ex. E. He is a licensed electrical engineer in the state of Texas. Tr. 170; Ex. E. His employer, Kilgore Engineering, is a forensic engineering firm which specializes in litigation issues, both for plaintiffs and defendants. Tr. 168, 170-171.

            In preparation for his testimony, Gsell testified that he was provided documentation regarding the Shovel, including 200 pages of electrical schematics, which show how the system is controlled. Tr. 172. He also physically inspected the Shovel three or four times. Tr. 172-173. When asked by Respondent’s counsel during the hearing if he came to a conclusion as to whether locking out the CSCB and RSCB “de-energized” the Shovel, Gsell testified “that it is not possible to produce mechanical movement of that machine while those two breakers are locked and tagged out.” Tr. 173. On follow-up, when asked if the circuits were in fact de-energized, he replied, “They de-energize a number of circuits throughout the machine […]” Tr. 173. Respondent introduced into evidence Exhibit D, which is an electrical schematic showing the two knife switches (marked “A” and “B”) and the pre-citation lockouts of the CSCB and RSCB. Ex. D. Gsell testified in detail that with both the CSCB and RSCB locked out, it was impossible to produce mechanical movement of the shovel. Tr. 177-188.

            During both his direct and cross-examination, Gsell opined that if the CSCB and RSCB were locked out, there would have to be a large number of faults or errors in the circuit for movement to occur. Tr. 189-194. On cross-examination, he characterized the likelihood as an “extremely low probability.” Tr. 194. He also testified on cross-examination that with the trailing cable de-energized or the knife blade switch that controls the shovel functions opened, there would be no electrical energy or concern with faults producing movement. Tr. 195-197. When asked if he would touch a de-energized circuit, Gsell replied that he would, but when asked if he would touch the load side of the vacuum contactor with the CSCB and RSCB locked out, he testified that he would want to verify that there was no power present before doing so. Tr. 195-196.

LEGAL ANALYSIS AND CONCLUSIONS

A. Analysis

            In interpreting the meaning of a statute, the Commission has recognized that “[w]hen the meaning of the language of a statute or regulation is plain, the statute or regulation must be interpreted according to its terms, the ordinary meaning of its words prevails and it cannot be expanded beyond its plain meaning.” Western Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar. 1989); Consolidation Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996). It is a cardinal principle of statutory and regulatory interpretation that words that are not technical in nature “‘are to be given their usual, natural, plain, ordinary, and commonly understood meaning.”’ Western Fuels, 11 FMSHRC at 283 (citing Old Colony R.R. Co. v. Commissioner of Internal Revenue, 284 U.S. 552, 560 (1932)). It is only when the plain meaning is doubtful that the issue of deference to the Secretary's interpretation arises. See Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (deference is considered “only when the plain meaning of the rule itself is doubtful or ambiguous”) (emphasis in original); Azno Nobel Salt, Inc., 21 FMSHRC 846, 852 (Aug. 1999).

            In pertinent part here, 30 C.F.R. § 56.12016 mandates that all electrically powered equipment be de-energized before mechanical work is done. It is clear and unambiguous that this includes locking out the power switches and taking any other measures necessary to prevent the equipment from energizing without the knowledge of those working on it. The plain, common-sense interpretation of this regulation is that the equipment should be de-energized so that those working on it have no reason to fear movement that could result in their injury. I note that the Dictionary of Mining, Minerals and Related Terms defines “deenergize” as “[t]o disconnect any circuit or device from the source of power.” (Emphasis added) . See also Youghiogheny & Ohio Coal Company, 3 FMSHRC 1073, 1078 (1981)(ALJ). Finally, this definition is also consistent with Helfrich’s discussion of the definition found in the dictionary of the Institute of Electrical and Electronics Engineers. See Tr. 95.

            Respondent argues, however, that the same result can basically be achieved by locking out the control power to the CSCB and RSCB by pulling the circuit breakers. It states that although the CSCB still receives some energy, the RSCB locks out all functions of the Shovel, making it virtually impossible to create movement. Expert witness Gsell testified that if this procedure is utilized, a lot of faults and errors must take place in order for movement to occur and described this scenario as having an “extremely low probability.” Tr. 184-195. Therefore, it claims that, although the CSCB is not completely locked out, Respondent has essentially achieved the same result by locking out the two circuit breakers, which also saves it time. Further, Respondent claims that, because the Secretary has expressed the fear of physical injury due to energized moving parts, 30 C.F.R. § 56.14105 would have been the correct regulation to cite, and it does not require equipment to be locked out while being maintained.

            I disagree that Respondent has met the standards set in 30 C.F.R. § 56.12016 by disabling the CSCB and the RSCB rather than locking out the knife blade switches to both. First, the regulation mandates that the equipment be de-energized prior to work being performed. Respondent’s witness testimony all seems to recognize that the Shovel is not completely de-energized; rather, it believes that it is de-energized enough. Tr. 134, 173, 195-196. However, this ignores the plain language of the regulation which demands de-energization, not partial de-energization. Further, although there was much testimony that pulling the circuit breakers essentially locked out the equipment and movement functions were unlikely, Respondent’s witnesses also admitted that the equipment was receiving power, as it was not disconnected from the power source. Further, and telling, Respondent’s expert witness testified that he would need verification that there was no power running to the Shovel before he would even touch particular parts of it. See Tr. 195-196. Finally, this expert witness conceded that enough faults could occur, although it was not likely (“extremely low probability”), that movement could occur. See Tr.194.

            Second, the regulation demands that either the power switches be locked out or, in the alternative, measures be taken to prevent the equipment from being energized. 30 C.F.R. § 56.12016. Neither is accomplished by Respondent’s procedure. Because the lock out of the power switches or knife blades require the presence of an electrician, Respondent has chosen the alternative method of pulling the circuit breakers. However, as shown above, this does not prevent the Shovel from being energized. In fact, Bush testified that the Shovel can be started under this method. This plainly conflicts with the regulation’s intent to ensure that equipment is de-energized for maintenance and repairs.

            What is arguably ambiguous about the standard is exactly to what injuries the regulation applies. Respondent argues that under Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9^th Cir. 1982), 30 C.F.R. § 56.12016 applies only to the hazard of electric shock, not to injuries caused by mechanical movement. However, the Commission has never explicitly followed the logic of this case and I do not agree that it should. In Phelps Dodge, the Court found that the Secretary had abused her discretion in reading the regulation, then 30 C.F.R. § 55.12-16 , to apply to movement of the equipment. Id. at 1193. It reasoned that because the regulation was found under the heading “Electricity” and found between regulations “whose purpose is manifestly to prevent the accidental electrocution of mine workers,” the instant regulation does not address the hazards of accidental movement. Id. at 1192. Moreover, it concluded that another code section provided for this protection and the language of § 55.12-16 inadequately expresses an intention to reach the situation as described. Id. at 1193.

            Given all of the facts, circumstances and testimony herein, I find a violation notwithstanding Phelps Dodge. First, in his dissent in that case, Circuit Judge Boochever adeptly acknowledges that the language of the statute is clear and unambiguous, and it does not in any way limit the regulation to situations involving electric shock. Phelps Dodge, 681 F.2d at 1193. Nor did he believe that principles of fair warning were in any way offended, as the words sufficiently warn that the regulation is applicable to electrical equipment regardless of the threat of electric shock. Id. at 1194.

            Second, the ALJ decision in Phelps Dodge was a short bench decision in which ALJ Merlin relied heavily on the expertise of the inspector. Id. at 460-461. Although it is not explicitly clear from the decision, it would imply that no experts were called to testify. In the instant case, however, we do have the benefit of expert testimony and MSHA expert Helfrich had been involved in the discussion and drafting of most of the electrical regulations since at least 1977 or 1978. Tr. 75-76; Ex. 10. At hearing, he gave clear, uncontradicted testimony that the standard was designed with the intent to prevent injury from both mechanical movement and electrical hazards. Tr. 81-82.

            Finally, I note that while 30 C.F.R. § 56.12016 and 30 C.F.R. § 56.14105 have many overlapping characteristics, they do not in any way preclude one another. The former falls within the category of “Electricity” which would seem to imply that it applies to electrical equipment. Therefore, if an operator follows the lock out and tag out procedures described in the standard so that a miner performing mechanical work cannot be harmed by electric shock or mechanical movement created by electricity flowing through the machine, it is in compliance with this statute. The latter standard requires that repairs or maintenance can only be performed when the power is off, except to the extent that motion is necessary for adjustment or testing and then only when miners are protected from such hazardous motion. In this way, the regulations actually work together to create a safer working atmosphere rather than creating a situation where the operator is forced to comply with one or the other. The argument to the contrary is unpersuasive. For the foregoing reasons, I decline to follow the logic of Phelps Dodge and find that 30 C.F.R. § 56.12016 relates to accidental movement as well as electrical shock.

As a final argument, Respondent claims that forcing it to lock out the CSCB and RSCB by turning the knife blade switches will necessarily reduce efficiency in the mine because a certified electrician is needed to perform this task, while any experienced miner may pull the circuit breakers. It argues that, at times, it will have to balance the importance of maintenance to the Shovel with the need for electricians in other areas of the mine. While I appreciate the need for efficiency in the mine, it is established that, when the safety of the miners is concerned, some efficiency must be sacrificed. See generally Morris Sand and Gravel, 16 FMSHRC 624, 630 (1994)(ALJ)(Preventative safety measures must not be sacrificed in the interests of production and continuing operations); Plateau Resources Limited, 5 FMSHRC 605, 607 (1983)(ALJ).

Based on all of the foregoing, and noting particularly that Respondent’s practice of locking out the CSCB and the RSCB will not insure against accidental movement, I find that the Secretary has met her burden of establishing a violation of 30 C.F.R. § 56.12016. I also find that the violation is non-significant and substantial as there would be little likelihood of an incident occurring if Respondent’s method of locking out the circuit breakers were utilized. This finding is supported by the testimony of Inspector Koivisto.

            Negligence “is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required to 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.” Id. MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices. Id. Low negligence exists when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. High negligence exists when “[t]he operator knew or should have known of the violation condition or practice, and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785 (2011)(ALJ).

            From the testimony, Respondent knew that it was not de-energizing the Shovel by pulling the circuit breakers rather than locking out the knife blade switches. In plain terms, the method used was instead a work around of the language of the statute to increase efficiency at the Mine. This, in and of itself, would indicate high negligence on the part of the operator. However, I believe that Respondent had a good faith belief that this method would be highly unlikely, if ever, to result in an injury to a miner. Therefore, mitigating circumstances exist to justify moderate rather than high negligence. In this manner, Citation No. 6493272 remains as issued by the Secretary.

B. Penalty

            The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Act are well-established. Section 110(i) of the Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. 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 of 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).

            I have considered all of the above factors and find that a penalty of $500 is appropriate under the circumstances herein. I note specifically the size of the operator’s business and the negligence of the operator, particularly its decision to consider operational efficiency over the safety of miners.

ORDER

            Based on the criteria in Section 110(i) of the Act, 30 U.S.C. § 820(i) and having found that a violation exists, I assess a penalty of $500.00. The Respondent, Northshore Mining Company is hereby ORDERED to pay the Secretary of Labor the sum of $500.00 within 30 days of the date of this decision.

                                                                        /s/ Janet G. Harner

                                                                        Janet G. Harner

                                                                        Administrative Law Judge

Distribution:

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Chicago, IL 60604

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222