FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

                                                              1331 Pennsylvania Ave., NW, Suite 520 N                                                           

Washington, DC 20004-1710

April 18, 2013

DECISION

Appearances:  Travis Gosselin, U.S. Department of Labor, Chicago, Illinois, on behalf of the

Secretary of Labor;

                        R. Henry Moore, Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, on behalf of

                        Northshore Mining Company and Robbie M. Wills.

Before:            Judge Zielinski

            These cases are before me upon Notices of Contest and Petitions for Assessment of Penalty filed by the Secretary of Labor pursuant to sections 105(d) and 110(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d), 820(c). The petition in LAKE 2010-964-M alleges that Northshore Mining Company is liable for two violations of the Secretary’s Safety and Health Standards for Surface Metal and Nonmetal Mines, and proposes the imposition of penalties in the amount of $29,500.00. The petition in LAKE 2012-06-M alleges that Robbie M. Wills, an agent of Northshore Mining, is personally liable for one violation of the standards, and proposes the imposition of a penalty in the amount of $2,700.00. A hearing was held in Duluth, Minnesota and the parties filed post-hearing briefs. For the reasons that follow, I find that Northshore committed the violations and impose civil penalties in the total amount of $7,000.00. I find that Wills is not liable under section 110(c) and dismiss the petition filed against him.

Findings of Fact - Conclusions of Law

Citation No. 6493359

            Citation No. 6493359 was issued by John Koivisto at 2:33 p.m. on April 6, 2010, pursuant to section 104(d)(1) of the Mine Act. It alleges a violation of 30 CFR § 56.11001 which requires that “[s]afe means of access shall be provided and maintained to all working places.” The violation was described in the “Condition and Practice” section of the citation as follows:

Crusher Ground Floor Repair Bay: Safe access was not provided to the upper elevated work platform on the east side of the “Evapco” oil cooler. Personnel were reportedly walking [a]... 6.5 inch wide steel beam on the south side of the cooler for a distance of about 12 feet to access a vertical ladder. The beam was about 3 feet above the steel platform deck. There were numerous trip hazards along the beam including piping, angle iron, and a fall hazard to the lower floor near the ladder. Footprints were observed on a wooden box and on the beam. Reportedly[,] personnel access the upper platform monthly via this route. Crusher Coordinator Rob Wills engaged in aggravated conduct constituting more than ordinary negligence in that he was aware personnel were using this means of unsafe access. The violation is an un-warrantable failure to comply with a mandatory standard.

Ex. S-1.

            Koivisto determined that the violation was reasonably likely to cause a fatal injury, that it was significant and substantial, that one person was affected, and that the operator’s negligence was high. He also determined that the operator’s negligence rose to the level of unwarrantable failure. A civil penalty in the amount of $24,600.00 was specially assessed for the violation.

The Violation

            On April 6, 2010, Koivisto was at the Northshore Mine and conducted an inspection of the crusher area. Tr. 25, 84-85. He was accompanied by Dean DeBeltz, a Northshore safety representative. As Koivisto climbed a stairway to an Evapco cooler, he noticed a wooden box, and upon further investigation, discovered a steel beam near the box, both with footprints, indicating that miners were using the beam to reach a ladder that led to an upper platform on the cooler. Tr. 35-36; Ex. S-5. Robbie Wills, the foreman of the section, told Koivisto that approximately once a month, employees would step onto the box to reach the beam and walk across the beam to a ladder that led to the upper platform in order to do preventative maintenance work. Tr. 37, 128-29. This route was established because access to the ladder from a lower platform was eliminated when the cooler was installed.

            The beam is depicted in a photograph and a drawing made by Koivisto. Ex. S-4, S-5C. It was flat, smooth, approximately 6 ½ inches wide, and ran along the south side of, and 10-14 inches away from, the cooler. Tr. 34, 42. Miners using the route would step onto the box at the southwest corner of the cooler, step onto the beam, and walk approximately 12 feet to a ladder that was mounted vertically on the southeast corner of the cooler. Ex. S-4. The passageway was 22 inches wide, measured from the wall of the cooler on the left to two pipes on the right that were 3-4 inches in diameter and mounted, one above the other, from 30 to 46 inches above the beam. Tr. 44, 127; Ex. S-5C. A steel deck was located 3 feet below the beam. Ex. S-1. The rails of the ladder touched the edge of the beam. Consequently, the distance between the ladder rails and the pipes on the right was approximately 8-10 inches. Ex. S-5C. Just before reaching the ladder, a small 1-inch diameter pipe crossed over the beam at a height of approximately 1 foot. Tr. 46-47, 87-89; Ex. S-5C. Approximately 10-12 inches beyond the ladder, another pipe, the top handrail of the cooler’s lower work platform, crossed the beam, at a height of approximately 4 inches. Tr. 47; Ex. S-5D. There was also a piece of angle iron in that area, but it is unclear whether it extended over the beam. The lower work platform did not extend beyond that railing, and at that point the distance to the floor below was 15-17 feet. Tr. 47; Ex. S-5G. Once he reached the ladder, a miner would step over the small pipe, turn to face the ladder and the cooler, sliding into the 8-10 inch gap between the ladder and the pipes, and climb up three rungs to the upper work platform.

            While men who used the access route told Koivisto that they did not think the route was unsafe, he believed that it was unsafe because there were unprotected openings, no handrails, and either a 3 foot or a 15-17 foot fall if a miner tripped on a pipe or mis-stepped as he walked along the beam. Tr. 35. In addition, employees confirmed that not everyone who used the access route wore fall protection. Tr. 38. Koivisto posited that these factors could have led to serious injuries of the knees, back, or arms, if a miner mis-stepped while walking the beam, or a fatal injury if he fell through the gap between the ladder and the pipes to the floor below.

            Respondents argue that the access route did not violate the standard because it was safe and there was “no realistic likelihood of falling.” Resp. Br. at 5. They maintain that the wall of the cooler and the pipes provided protection to a miner walking on the beam by, in essence, providing handrails. Tr. 87; Resp. Br. at 5. Further, they point to a policy letter issued by MSHA, entitled “Safety Belts and Lines,” that states, in essence, that fall protection is not required where there is a danger of falling less than 6 feet. Resp. Br. at 6; Program Policy Letter P12-IV-01.

            The program policy letter states, “[i]n many cases, compliance with OSHA's fall protection standard will satisfy the requirements of MSHA's 30 C.F.R. §§ 56/57.15005 standard.” Program Policy Letter P12-IV-01. However, Respondent was not cited for violating section 56.15005 and nowhere in the letter is section 56.11001 addressed. Under the policy letter, fall protection may not have been required in the circumstances at issue, but that does not mean that the access route was otherwise safe.

            The question to be resolved is whether the access route along the beam posed a danger to miners who had to traverse it in order to reach the upper work platform of the cooler. See Western Industrial, Inc., 25 FMSHRC 449, 452 (Aug. 2003). While the miners were trained to have three points of contact while traveling down the beam, the beam was relatively narrow, there was a trip hazard, and there were openings on either side of the beam. A misstep while traversing the beam, attempting to step over the small pipe, or attempting to step onto the beam while descending the ladder, could have resulted in a number of injuries, as described by Koivisto.

            The fairness of applying a broadly worded standard, like section 56.11001, to particular factual situations is judged by application of the “reasonable person test,” i.e., what a reasonably prudent person, familiar with the mining industry and the protective purpose of the standard would have provided in order to meet the protection intended by the standard. Ideal Cement Co., 12 FMSHRC 2409, 2415 (Nov. 1990). Here, Wills, the newly assigned foreman, had identified a problem with the route and had initiated steps to address it. While his assessment that the route did not pose a high degree of danger was not unreasonable, it clearly did pose a danger, and a reasonable person would have concluded that it did not meet the safe access protection intended by the standard.

            I find that safe access was not provided, and that the standard was violated.

Significant and Substantial

The Commission reviewed and reaffirmed the familiar Mathies framework for determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65 (Oct. 2011):

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).

                        . . . .

                        . . . .

The Commission recently discussed the third element of the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map). The Commission held that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission also emphasized the well-established precedent that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

The fact of the violation has been established. It contributed to a discrete hazard, a miner mis-stepping or tripping and falling. Whether the violation was S&S turns on whether the hazard was reasonably likely to result in an injury causing event and whether it was reasonably likely that an injury would be of a reasonably serious nature.

            Koivisto determined that an injury was reasonably likely to occur, and he thought that miners would have continued to use the beam in order to access the cooler. Tr. 73-74. In addition, several miners stated that they did not wear fall protection, which Wills explained would not have prevented a fall of 3 feet to the deck below. Tr. 38, 161. Koivisto posited that a miner could have hurt his back, fractured a knee, or broken an arm or his tail bone from trying to catch himself from a mis-step, tripping, or falling from the beam. Tr. 42-43. He also anticipated that a miner could have fractured his leg, hurt his knee, or suffered a broken ankle as a result of slipping off the beam where piping and small openings were located. Tr 44. Furthermore, he stated that if a miner went beyond the ladder and tripped over the handrail pipe or angle iron, or tripped and fell between the ladder and the pipes on the right, he could fall to the concrete floor below, and suffer a fatal injury. Tr. 47, 56-57.

            Koivisto agreed that miners could have touched the cooler to the left and the pipes to the right of the beam in order to steady themselves as they walked 12 feet on the beam to reach the ladder, stepping over the small pipe. Tr. 87. Miners were trained to use three points of contact when climbing a ladder to prevent falls. Tr. 90, 132. They did not carry tools up the ladder. If tools were needed, they would be set on the upper platform, which was easily reachable from the lower platform, prior to climbing to the upper platform. Tr. 129. Crusher technicians that Koivisto interviewed stated that they did not think that access to the cooler was unsafe. Tr. 96, 173-174; Ex. R-5. Even so, Wills was in the process of developing solutions to improve access to the upper work platform.

            The cooler and the access route had been in place for approximately 10 years and even though Wills had identified the condition as awkward and developed possible solutions for alternate access, he did not move forward with plans to remedy it because he was addressing other issues. Tr. 85, 125-26. This indicates that the condition would have continued to exist for a considerable period of time, making injury reasonably likely. A miner would have no reason to proceed to the east beyond the ladder, and it is highly unlikely that a miner would fall through the relatively narrow opening between the ladder and the pipes. Consequently, there was no realistic possibility of the condition resulting in a fatal injury. However, a fall from a mis-step or tripping could reasonably have been expected to result in lost workdays or restricted duty from a miner fracturing or otherwise injuring his knee, ankle, or back. I find that these injuries would have been reasonably serious in nature, and therefore, that the violative condition was significant and substantial.

Unwarrantable Failure- Negligence

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated the law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)] (approving Commission's unwarrantable failure test).

Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

            The Secretary asserted that the violation was the result of Northshore’s unwarrantable failure because Wills knew employees were using the beam as a means of access and he did not stop the practice, barricade the area, contact the safety department, or submit a work order.

Tr. 72-73; Sec’y Br. at 20-21. The Secretary also maintained that the condition posed a high degree of danger. Sec’y Br. at 20-21. Koivisto believed that the violation was an unwarrantable failure because Wills exemplified “aggravated conduct beyond ordinary negligence . . . . ” Tr. 74.

Obviousness and Operator’s Knowledge of the Existence of the Violation

             Wills was aware of the access route to the cooler and stated that the means of access had always been the same. Tr. 60; Ex. S-2 at 2. He had also used the beam once himself to investigate a safety chain issue that was found during a January 2010 inspection. Tr. 61, 62, 69; Ex. S-2 at 2. Wills told Koivisto that when he looked at the platform, he realized there was an access problem and discussed how to resolve it with the crusher group. Tr. 67, 138; Ex. S-3 at 12.

            Wills did not think that the access route was unsafe, only that it was awkward and not the best design. Tr. 133, 138; Ex. R-4. In addition, the men who used the access route did not think it was unsafe. Nonetheless, Wills put the access route on his list of issues to address, but had not moved forward with possible solutions. Wills stated that after telling Koivisto this, he responded by saying that if they had understood each other better, he might not have written a “d” order, i.e. charged Northshore with unwarrantable failure. Tr. 136. However, after conducting some research, Koivisto maintained that the “d” order was proper. He discovered that Wills never submitted a work order and continued to send miners up to the platform to perform maintenance because he did not have time to address the issue. Tr. 68.

            The violative condition was obvious and I find that Northshore had knowledge of the existence of the violation.

Length of Time

            The Evapco cooler was installed in 2001 and the access route conditions had not changed through the issuance of the order in 2010. Tr. 85. In addition, absent the citation, the condition would have continued for the foreseeable future.

Operator Placed on Notice that Greater Efforts at Compliance were Necessary

            The Secretary did not present any evidence that Northshore was placed on notice that greater efforts at compliance were necessary.

Extent of the Violation

            The extensiveness factor involves consideration of the scope or magnitude of a violation, not an additional consideration of dangerousness or obviousness. Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010).

            Preventative maintenance was done on the cooler approximately once a month by one miner. Tr. 128-29. There was no indication from either party that it was accessed for any other reason or more frequently. Therefore, the scope and magnitude of the violation being small, I find that the violation was not extensive.

Degree of Danger

            As stated above, access to the cooler had not changed in approximately 9 years, and the Secretary did not present any evidence of injuries that occurred as a result of walking the beam. While there were no handrails, the pipes to the right of the beam and the cooler to the left provided a reasonably secure passageway that allowed for three points of contact when a miner was walking the beam. In addition, the miners who worked in the area, including Wills, did not think the access route was unsafe. If, on the off chance, a miner did mis-step or trip while walking the beam, the most serious expected injuries may have resulted in lost workdays or restricted duty.

            I find that the violative condition did not pose a high degree of danger to miners.

Operator’s Efforts in Abating the Violation

            The focus of the abatement effort factor is on compliance efforts made prior to the issuance of the violation, generally a measure of an operator’s response to violative conditions that were known or should have been known to it. While the parties stipulated that Northshore exhibited good faith in abating the violation, post-citation efforts are not relevant to the determination of whether the operator engaged in aggravated conduct in allowing a violative condition to occur. Enlow Fork Mining Co., 19FMSHRC 5, 17 (Jan. 1997).

            When Wills became foreman of the crusher section, he sat down with employees about once a month and discussed their concerns. Tr. 124. Wills also developed a list of projects to undertake, one of them being improving access to the top of the cooler. Tr. 125-26. In January 2010, Koivisto identified a safety chain issue on an elevated platform. Tr. 124. As a result, there was a campaign to repair or install handrail chains in other locations. Id. When Wills used the access route to investigate the safety chain issue on the upper work platform of the cooler in February 2010, he added it to the list of projects. Tr. 124-25. Wills talked to the crusher planner about creating a different access route. Tr. 149. They developed several designs but never narrowed the choices. Tr. 150-51. Wills testified that he could have submitted a work order before deciding on a plan, but he would likely have had to go back and change it. Tr. 160. In addition, he would have needed to speak with the supervisor to confirm the chosen plan before sending the proposal to an engineering company, tasks that are not done via submission of a work order. Tr. 162. Koivisto maintained that Wills could have taken other steps to address the problem such as barricading the area or requiring miners to wear fall protection.

            Northshore was in the process of addressing the issue, however, it had not continued to move forward by deciding on a particular plan. The citation was terminated by simply moving the ladder to a different point, which demonstrated that there was a relatively easy and quick solution. Ex. S-5A. Additionally, while fall protection may not have prevented a fall to the deck below, barricading the access route would have insured that no miner was put at risk of injury.

            I find that Northshore made no effort to abate the violation.

Conclusion

            Northshore had knowledge of the violative condition, and did not actively attempt to correct it. The violative condition was obvious and existed for a long period of time. The condition was not extensive, the operator was not placed on notice that greater efforts at compliance were necessary, and it did not present a high degree of danger to miners.

            In addition to the elements above, I agree with my colleague that, “lack of previous enforcement must be considered when analyzing the negligence of the operator.” Sierra Rock Products, Inc., 35 FMSHRC ___, slip op. at 8, No. WEST 10-1589 (Jan. 8, 2013) (ALJ) (review granted Feb. 13, 2013); Tide Creek Rock, Inc., 24 FMSHRC 201, 123 (Feb. 2002) (ALJ). Miners had been using the same access route to the cooler’s upper platform since it was installed in 2001. There had been two complete inspections conducted by MSHA each year since that time. Tr. 85. Not one inspector identified the condition as unsafe, including Koivisto, who had performed an inspection of the same area in January 2010. Tr. 84, 85, 124. Koivisto maintained that the location of the beam was somewhat hidden and that the ladder was not located in a position where it could have been easily seen. Tr. 112. However, there was only one ladder to the upper platform, and, as depicted in a photograph taken by Koivisto, the ladder was clearly visible from the floor of the crusher area. Tr. 114, 116; Ex. S-5G.

            Upon consideration of all the factors, I find that the violation was not the result of Northshore’s unwarrantable failure to comply with the standard, but that based on the facts above, its level of negligence was properly marked as high. 

Individual Liability

            Section 110(c) of the Mine Act states: “Whenever a corporate operator violates a mandatory health or safety standard . . . , any director, officer, or agent of such corporation who knowingly authorized, ordered or carried out such violation, . . . shall be subject to . . . civil penalties.” 30 U.S.C. § 820(c).

            The proper legal inquiry for determining liability under section 110(c) is whether the corporate agent knew or had reason to know of a violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 36264 (D.C. Cir. 1997). To establish section 110(c) liability, the Secretary must prove that an individual knew or had reason to know of the violative condition, not that the individual knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)).

            A knowing violation thus occurs when an individual “in a position to protect employee safety and health fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition.” Kenny Richardson, 3 FMSHRC at 16. The Commission has explained that “‘[a] person has reason to know when he has such information as would lead a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence.’” Id. (citation omitted). In addition, section 110(c) liability is generally predicated on aggravated conduct constituting more than ordinary negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).

Ernest Matney, 34 FMSHRC 777, 783 (Apr. 2012).

            Wills started as a foreman for the crusher area less than one year before the citation was issued. Tr. 122-23. The operator had just come back from a shut down and there was a large turnover in management. Tr. 123. Because Wills was the only salaried coordinator, he had to train his replacement in the bull gang, a new employee in the truck shop, and a new employee in the electrical shop during the first few months of his new job. Tr. 123.

            As discussed above in detail, Wills addressed general safety concerns with employees, identified the access issue, and added it to his list of projects to undertake. While he thought that the route was awkward, he did not pursue his effort to find a permanent solution.

            On the other hand, the condition had existed for almost 10 years, and had never been identified as an unsafe access route in any of the approximately 20 MSHA inspections conducted during that time. Wills reasonably believed that the access route did not pose a serious hazard, and that it had been at least implicitly approved by prior managers and inspectors. While he should have had knowledge of the violation, his conduct cannot be characterized as indifference or a serious lack of reasonable care that constituted more than ordinary negligence. I find that he is not subject to liability under section 110(c) of the Act.

Order No. 6493367

            Order No. 6493367 was issued by Koivisto at 10:54 a.m. on April 14, 2010, pursuant to section 104(d)(1) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.14100(b) which states, “[d]efects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” The violation was described in the “Condition and Practice” section of the order as follows:

Company #103 (P&H model 2800) Cable/Rope Shovel: A defect on the shovel was not corrected in a timely manner. The mirror mounted on the left side of the shovel was not present. The shovel was in use at the time and reportedly the mirror had been missing and not replaced since at least March 1, 2010. This condition exposed personnel to mobile equipment hazards. Mine Maintenance Coordinator Randy Lislegard stated he was awaiting a warranty ticket resolution by the manufacturer since about September, 2009. Coordinator Lislegard engaged in aggravated conduct constituting more than ordinary negligence in that he was aware of the condition and allowed the machine to remain in operation without a left side mirror. This violation is an unwarrantable failure to comply with a mandatory standard.

Ex. S-6. 

            Koivisto determined that the violation was unlikely to cause an injury, that the injury could reasonably have been expected to be fatal, that one person was affected, and that the operator’s negligence was high. He also determined that the operator’s negligence rose to the level of unwarrantable failure. A civil penalty in the amount of $4,900.00 was specially assessed for the violation.

The Violation - Gravity

            During an inspection on April 14, 2010, Koivisto found that the left-side mirror of the No. 103 P&H 2800 shovel was missing. Tr. 186, 188. Generally, there is no requirement that mirrors be installed on a shovel. Tr. 217. However, the manufacturer delivered the machine with two mirrors, and if the absence of the mirror constituted a defect affecting safety, the standard required that it be corrected in a timely manner. Tr. 217. The mirror on the right was close to the operator’s cab, and provided a reasonable view to the rear along the right side of the shovel. In contrast, the left-side mirror, the same size as the right-side mirror, was located 30 feet away from the cab, on the left front corner of the shovel, approximately 20-30 feet above the ground, and the operator’s view of the mirror was partially obstructed by a boom and cables.

            The P&H 2800 shovel is an extremely large piece of equipment – described as the size of a house – that is used to dig surface material, rock or taconite, and load trucks that haul the material away. Tr. 189. The operator sits in a cab, three sides of which have windows, located on the top right front corner of the machine. Tr. 189, 243. The upper part of the shovel, called the house, rotates on a large center pin. The boom and related cables that support the shovel’s bucket, are mounted in the center of the rotating part of the shovel. Tr. 199-200; Ex. S-10. In addition to the mirrors, the shovel is equipped with two cameras: one is positioned on the boom, facing down towards the shovel bucket, and the other is located on the rear, facing a trailing cable. Tr. 191, 193, 239-40; Ex. S-8 at 17, S-10. The rear camera remains in one spot and does not pivot with the house. Tr. 278. A monitor located in the operator’s cab could display the view of either camera. Tr. 239.

            Koivisto stated that because the shovel is so large, there is very limited visibility to the sides and rear of the machine and because the cab where the operator sits is on the right side of the shovel, the left side is a blind spot. Tr. 194, 234. He maintained that the operator needed mirrors to look for personnel or other equipment nearby. Tr. 194. Based on tire tracks he observed on the left side, Koivisto asserted that rotating the bucket to the left, without the left side mirror, created a crushing hazard to mobile equipment and personnel that might be located on the left side for reasons such as loading, maintenance, or clean-up. Tr. 195-96, 216, 226; Ex. S-8 at 18, S-10. Another potential crushing hazard was presented when the bucket was rotated to the right, because the rear of the house would then swing out into what had been the left side of the shovel. Tr. 252. However, the house would have passed over any miner on foot, and any mobile equipment that might be struck would have to have been in very close proximity to the shovel.

            Northshore maintains that the missing mirror was not a defect affecting safety because it provided virtually no view of the left side of the shovel and was not used by shovel operators. The left-side mirror was located some 30 feet from the operator’s cab, and the view of the mirror was partially or totally obstructed by the boom and cables, depending on the position of the bucket. Tr. 265-67, 285. Koivisto confirmed that the view could be obstructed at times. Tr. 233. Several witnesses testified that the left-side mirror provided virtually no view of the left side of the shovel, or the ground on the left side of the shovel. Tr. 265-67, 289. Koivisto confirmed that the left-side mirror provided a “significantly lesser” view of the left side of the shovel than the right-side mirror did of the right side, and was unable to state whether it could display the ground on the left side of the shovel. Tr. 227-28. DeBeltz interviewed a number of shovel operators the day after the order was issued, and none indicated that they used the left-side mirror. Tr. 249.

Operators interviewed by Koivisto told him the same thing, apparently with one exception. Tr. 219. The mirror was convex, distorting images, and it was not apparent from photographs introduced into evidence exactly what could be seen in the mirror, or whether the ground was visible. Tr. 235, 236, 294; Ex. S-10.

            Northshore also maintains that the missing mirror presented no safety hazard during maintenance, cleanup, locomotion, or loading. Randy Lislegard, Northshore’s maintenance coordinator, maintained that the left side mirror was not used to perform any of these functions. Tr. 269. Positive contact with the shovel operator, by radio or sight, is required before any approach to the shovel. For maintenance or repair work, which Koivisto explained could prompt a “convention” of vehicles and personnel around and on the shovel, positive radio contact would be made. The operator would then set the bucket on the ground and apply the brakes, which locked the house. He would then leave the cab to lower a ladder on the right side of the shovel to the ground. Tr. 244, 251. When the ladder is down, there is an interlock that prevents the shovel from energizing. Tr. 270. A similar process, including positive contact with the operator, was followed for clean-up around the shovel, and clean-up was done only at the request of the shovel operator. Tr. 253.

            When in operation, the power cable on the rear of the shovel is connected to a stationary power source. When the shovel must be moved to a different location, a portable device called a generator set is used to supply power to the shovel as it moves. During this process, the house and operator are facing forward and the generator set follows behind the shovel which moves slowly and in a straight line. Tr. 223, 271-72. The generator supplies only enough power to provide locomotion. The bucket and all other power driven mechanisms are locked out, and the house cannot rotate.

            DeBeltz explained that to load material in a truck from either side of the shovel, the truck driver would contact the operator of the shovel or vice versa, usually by radio. Tr. 243-44. Then, the operator would move the bucket to where it would be positioned for loading. The truck would then be backed in, and the shovel operator would sound the horn when the truck was in the proper position. Tr. 242-43. The operator would then rotate the shovel back and forth to load the truck. Tr. 269. The operator must see the truck in order to load it and DeBeltz asserted that the top of the truck would have been visible. Tr. 243, 257.

            At the time the order was issued, the shovel was positioned in such a way that its power cable paralleled the material bank and created a narrow passageway that would not have allowed traffic to pass from the right side over to the left side in back of the shovel. Tr. 247. DeBeltz asserted that it would have been against company procedure and difficult to drive over the cable because it was raised slightly above the ground and carried 7200 volts. Tr. 248. The cable and the location of the bank made crossing in front of the shovel the only possible route to the left side.

            The shovel was delivered, and accepted by Respondent, with both left and right side mirrors, which had to be maintained under section 56.14100(b) if safety was affected. Mirrors are installed on mobile equipment as safety devices. While the view that the left-side mirror displayed may have been distorted and did not show the ground on the left side of the shovel, it provided some view of areas on the left side of the shovel, enough to provide some warning of the presence of mobile equipment or personnel, which at least marginally increased the general safety level with which the machine could be operated. As Koivisto explained, at times the mirror would not provide much of a view, but at other times it could be critical. Tr. 235. Also telling, was Lislegard’s statement that Northshore at first wanted to remove the left-side mirror, but was told that it couldn’t. Tr. 272. The statement was not further explained, but it is possible, if not likely, that the reason that removal of the mirror was barred was because it was considered safety equipment.

            I find that the absence of the left-side mirror was a defect affecting safety. As discussed more fully, infra, Northshore knew that the mirror had been missing for at least six weeks, and chose to pursue a warranty claim against the manufacturer rather than continue to replace the mirror, which failed frequently. It did not correct the defect in a timely manner. Accordingly, I find that failure to timely replace the missing left-side mirror violated section 56.14100(b).

            Koivisto determined that a fatal crushing injury was reasonably expected to occur based on the size of the shovel and the possibility that the bucket could be swung around at a low level, such that it or material falling from it might strike persons or other mobile equipment. Tr. 216. He also asserted that injury was unlikely because of the procedures requiring radio contact before approaching the shovel, though, he was aware of accidents where radio communication failed with large mobile equipment, but not specifically power shovels. Tr. 216, 230.

            DeBeltz asserted that there were procedures in place requiring radio contact before approaching the shovel, left-side loading was uncommon, and the shovel was locked out when maintenance was performed. Tr. 219, 223-24. Further, he maintained that the house rotated approximately 20 feet off the ground and would have passed over any unseen person standing on the ground. Tr. 232. Whether it would have passed over mobile equipment would have depended on the size and location of the equipment. Tr. 232. As for the possibility that the bucket would strike a vehicle, there was nothing to obstruct the operator’s view of the bucket as it swung, and it was swung more slowly to the left because of the limited visibility. Tr. 254-56.

            I find that an injury was correctly marked as unlikely. If the bucket was swung and hit a piece of mobile equipment as a result of the missing mirror, a fatal injury could be expected because of the sheer size of the machine. Material falling from the bucket could also cause a fatality, and the rear of the shovel could fatally injure the operator of a piece of mobile equipment located close to the shovel.

Unwarrantable Failure - Negligence

            The Secretary argued that the violation was the result of Northshore’s unwarrantable failure because it knew that the mirror was missing and had the means to install a new mirror, but chose to rely on the manufacturer instead, letting the condition continue for a long period of time. Sec’y Br. at 29-30.

Obviousness and Length of Time

            Shovel operators perform an inspection of the shovel before beginning to operate it, and record the results on cards. At least eight pre-operation inspection cards, dated between March 1 and April 12, 2010, stated that the left mirror was missing. Tr. 205; Ex. S-12. Even though some cards did not mention a missing mirror, the number of cards that did led Koivisto to believe that the mirror had been missing since at least March 1, 2010, and that it had not been replaced between then and April 12, 2010. Tr. 206. This belief was confirmed by Lislegard who told Koivisto that he did not believe the mirror was replaced during the month of March. Tr. 208;

Ex. S-7 at 5.

            Respondent had a computer system, referred to as “Ellipse,” that tracked work orders. The system showed that the mirror had not been replaced since September 1, 2010 and no work orders were placed subsequent to March 1, 2010. Tr. 275-77. However, as far as Wills was aware, the mirror had been replaced between September and March. Tr. 293.

            The violative condition was obvious, and at the very least, existed for a period of approximately 6 weeks.

Operator’s Knowledge of the Existence of the Violation

            In addition to the numerous pre-operation inspection cards given to the control room operator that stated that the left-side mirror was missing, there was also a warranty ticket from September 2010 that remained open at the time the order was issued. Tr. 209-11, 260-61;

Ex. S-7, S-11. Lislegard was in the process of trying to resolve the issue with P&H. Tr. 209-11. It is clear that Respondent knew about the violation.

Operator Placed on Notice that Greater Efforts at Compliance was Necessary

            There was no evidence presented by the Secretary that Respondent was placed on notice that greater efforts were required to comply with the standard.

Extent of the Violation

            The violative condition involved the failure to replace a left-side mirror that slightly enhanced the safety of the shovel’s operations. It did not have a significant impact because, with one exception, none of the operators used the mirror while performing tasks such as loading, clean-up, and maintenance. In addition, the view that the mirror displayed, when visible from the operator’s cab, was distorted and extremely limited.

            I find that the violative condition was not extensive.

Degree of Danger

            Debeltz testified to the communication and safety procedures that were used when the shovel was in operation. For loading purposes, any truck driver that wanted to approach the shovel had to make positive contact with the operator, usually by radio, and wait for the operator to spot the truck. Likewise, advance radio communication was required for clean-up and maintenance tasks, and the operator would shut off power and lock out the machine before any maintenance personnel approached. Loading rarely took place on the left side. The operators, almost uniformly, did not use the left-side mirror because of its obstructed and distorted view, and the fact that it provided an extremely limited view of the left side of the shovel.

            I find that the violative condition did not pose a high degree of danger.

Operator’s Efforts in Abating the Violation

            Respondent had three 2800 P&H shovels in 2010 and all of them had issues with the mirrors popping out of the plastic holder, cracking, or the plastic holders cracking. Tr. 262-63. Prior to the issuance of the order, Respondent tried to use regular mirrors and mirrors with metal backs but the mirrors were breaking before being installed on the shovels. Tr. 263. Mirror issues were occasionally discussed at monthly meetings with P&H. Tr. 264, 281. Respondent wrote a warranty ticket in response to its claim on September 8, 2010, but it was still open at the time the order was issued. Tr. 214; Ex. S-11.

            In addition to the warranty ticket, there were seven pre-operation inspection cards with notes about a missing left mirror. The cards would go to the control room operator who would then look in the Ellipse system to see if the same issue had already been tagged, and if it had not, a work order would be created. Tr. 260-61. There were three work orders in the Ellipse system that were dated prior to the warranty ticket. Tr. 261-62. There were no work orders placed between March 1, 2010, and the time that the order was issued, which indicates that a work order was in the Ellipse system for 6 weeks and it was not filled.

            While Respondent had, in the past, tried to develop ways to keep the mirrors secure, and replaced them periodically, it had chosen to pursue the manufacturer’s warranty claim and had not replaced the mirror for at least 6 weeks. I find that Northshore made virtually no effort to abate the violation.

Conclusion

            Northshore had knowledge of the violative condition and did not attempt to address it for a lengthy period of time. However, I do not consider the knowledge or abatement factors to be particularly aggravating under these circumstances because Respondent had a legitimate, and reasonable belief that the missing mirror did not pose a significant safety hazard. The violative condition was obvious but it was not extensive, the operator was not placed on notice that greater efforts at compliance were necessary, and the condition did not present a high degree of danger to miners.

            Upon consideration of all the factors, I find that the violation was not the result of Northshore’s unwarrantable failure to comply with the standard. However, based on the facts above, I find that the negligence level was properly marked as high.

The Appropriate Civil Penalties

            As the Commission recently reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763 (Aug. 2012):

        Section 110(i) of the Mine Act grants the Commission the authority to assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the Commission, in determining penalty amounts, shall consider:

the 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).

            Under this clear statutory language, the Commission alone is responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties . . . we find no basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the Commission.”). While there is no presumption of validity given to the Secretary’s proposed assessments, we have repeatedly held that substantial deviations from the Secretary’s proposed assessments must be adequately explained using the section 110(i) criteria. E.g., Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need not make exhaustive findings but must provide an adequate explanation of how the findings contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. In addition to considering the statutory criteria, the judge must also set forth a discernible path that allows the Commission to perform its review function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).

Good Faith - Operator Size - Ability to Continue in Business

            The parties stipulated that Northshore demonstrated good faith in abating the violations. Ex. J-1. It was also stipulated that paying the proposed penalties would not affect Northshore’s ability to remain in business. Id. The parties did not stipulate to the size of Northshore as an operator. However, the MSHA Data Retrieval System, coupled with Table I of 30 C.F.R. § 100.3, indicates that Northshore is a medium-sized operator, and I so find.

History of Violations

            Northshore’s history of violations is reflected in reports from MSHA’s database, typically referred to as “R-17s.” Ex. S-13. One of the reports lists violations issued at Northshore Mine and reflects that 21 violations became final between April 2008 and April 2010. I accept the figures reflected in the report as accurate. However, the overall violation history set forth in the exhibit is deficient in that it provides no qualitative assessment, i.e., whether the number of violations is high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.

            Qualitative violations’ history information can often be found on the form reflecting calculations of the proposed assessments, which are usually filed with the petition. However, the assessment form for the two litigated violations did not reflect information on overall or repeat violation history because the penalties were specially assessed. Other citations, issued in the same time frame for violations of the same standards, reflect an assessment of 8-10 points for overall violation history and no points for repeat violations.

            I find that Northshore’s overall history of violations, as relevant to these violations, was low to moderate, and should not be considered an aggravating factor in the penalty assessment process.

Docket No. LAKE 2010-964M

            Citation No. 6493359 is affirmed as an S&S violation. However, it was not an unwarrantable failure to comply with the safety standard, and the injury that would have been reasonably expected to occur was lost workdays or restricted duty. It will be modified to a citation issued pursuant to section 104(a) of the Act. A specially assessed civil penalty in the amount of $24,600.00 was proposed for this violation. Considering that the violation would not have resulted in a fatality, that it was not an unwarrantable failure, and that the level of negligence remains high, a regular assessment would have resulted in a penalty in the range of $1,500.00. Considering the factors itemized in section 110(i) of the Act, and the diminished likelihood that a special assessment would have been deemed appropriate for the violation as modified, I impose a penalty of $4,500.00 for this violation.

            Order No. 6493367 is affirmed as a violation. However, it was not an unwarrantable failure to comply with the safety standard and therefore, the order will be modified to a section 104(a) citation. A specially assessed civil penalty in the amount of $4,900.00 was proposed for this violation. A regular assessment would have resulted in a penalty in the range of $1,200.00. Considering the factors itemized in section 110(i) of the Act, and the diminished likelihood that a special assessment would have been deemed appropriate for the violation as modified, I impose a penalty of $2,500.00 for this violation.

            The penalties imposed above, which total $7,000.00, are lower than the $29,500.00 in penalties assessed for the violations for which Northshore was found liable. The reductions are the result of findings of lesser gravity, that the violations were not the result of Northshore’s unwarrantable failures, and the diminished likelihood that special assessments would have been deemed appropriate.

ORDER

Based on the foregoing, it is ORDERED that Citation No. 6493359 and Order No. 6493367 are amended to citations issued pursuant to section 104(a) of the Act, and are AFFIRMED, as amended;

It is FURTHER ORDERED that the petition, in Docket No. LAKE 2012-06-M, lodged against Robbie M. Wills, in his individual capacity, is hereby DISMISSED; and

It is FURTHER ORDERED that Respondent, Northshore Mining Company, pay civil penalties in the amount of $7,000.00 within 45 days of this order.

                                                                        /s/ Michael E. Zielinski

                                                                        Michael E. Zielinski

                                                                         Senior Administrative Law Judge 

Distribution (Certified Mail):

Travis Gosselin, Esq., U.S. Department of Labor, 230 South Dearborn Street, Room 844, Chicago, IL 60604

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222