Northshore operates a plant at Silver Bay, Minnesota, that produces iron ore pellets from the taconite that it mines at the Babbit Mine.  Eight section 104(a) citations and one section 104(d)(1) citation issued at the plant were adjudicated at the hearing.  The plant is a “mine” under section 3(h)(1) the Mine Act.  30 U.S.C. § 802(h)(1).

I.  BASIC LEGAL PRINCIPLES

            A.        Significant and Substantial

 

            The Secretary alleges that the violations discussed below were of a significant and substantial (“S&S”) nature.  An S&S violation is a violation “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). A violation is properly designated S&S, “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

 

            It is the third element of the S&S criteria that is most difficult to apply. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based upon the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)). 

 

            The S&S nature of a violation and the gravity of a violation are not synonymous. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996).  The Commission has emphasized that, in accordance with the language of section 104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be S&S. U.S. Steel Mining Co., 6 FMSHRC at 1575. With respect to citations or orders alleging an accumulation of combustible materials, the question is whether there was a confluence of factors that made an injury-producing fire and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-71 (May 1990). Factors that have been considered include the extent of the accumulation, possible ignition sources, the presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-03.  

 

            B.        Negligence and Unwarrantable Failure

 

            The Secretary defines conduct that constitutes negligence under the Mine Act as follows:

 

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. Under the Mine Act, an operator is held to a high standard of care. 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. The failure to exercise a high standard of care constitutes negligence.

 

30 C.F.R. § 100.3(d).  The Commission has defined an unwarrantable failure as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987).  Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995).  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 e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

 

II.  DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

 

A.    Citation No. 6556570; LAKE 2011-664-M

 

On February 23, 2011, Inspector William Soderlind issued Citation No. 6556570 under section 104(a) of the Mine Act, alleging a violation of section 56.12004 of the Secretary’s safety standards.  The citation states, in part:

 

The heat lamp mounted on the electrical box was found hanging by its two inner conductors on the side of the box.  The hole in the box had a sharp metal edge the conductor insulation was rubbing on, and the lamp would sway back and forth when the door to the box was opened.  In this condition the lamp would not be grounded.

 

(Ex. G-V).  Inspector Soderlind determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal.  Further, he determined that the violation was S&S, the operator’s negligence was moderate, and that one person would be affected.  Section 56.12004 of the Secretary’s regulations requires that “[e]lectrical conductors exposed to mechanical damage shall be protected.”  30 C.F.R. § 56.12004.  The Secretary proposed a penalty of $8,209.00 for this citation.

 

1.  Summary of Evidence

 

Inspector Henry Soderlind testified that he issued Citation No. 6556570 on February 23, 2011, at Respondent’s plant (the “Mine”).  (Tr.I 10-11).[1]  The inspector issued the citation as a violation of 30 C.F.R. 56.12004 because an ungrounded heat lamp violated the safety standard.  (Tr.I 13-14).  The lamp was mounted on an electrical box and functioned 24 hours a day.  (Tr.I 13-14).  It swayed when the door to the electrical box opened or closed, causing the inner conductors to move across the sharp, metal edge of the box.  Id.  Grease, a greasy rag, and straws were in the box that operated the lubrication controls.  The electrical box was inside the lubrication control box.  (Tr.I 16; Ex. G-HH).  Inspector Soderlind testified that the room was covered in grease.  (Tr.I 16-17).

 

            Inspector Soderlind testified that Citation No. 6556570 was S&S.  The cited conditions presented shock and burn hazards.  (Tr.I 19).  The shock hazard posed the risk of fatality to miners through electrocution.  (Tr.I 22).  The inspector testified that the cited condition was reasonably likely to cause an injury because the area was greasy and a lube technician opened the box and moved the inner conductors without locking or tagging out the system.  (Tr.I 18).  The movement of the door and the lamp was likely to expose the inner conductors.  (Tr.I 19).   Conditions in the area were wet.  (Tr.I 21).  If the cabinet was not grounded, it could become energized.  Id. 

 

            Inspector Soderlind designated Citation No. 6556570 as the result of Respondent’s moderate negligence because the condition was obvious.  (Tr.I 23).  The inspector testified that a lube technician stated that he had found the hazard in the morning, but had not addressed it.  (Tr.I 25).

 

            Tim Aijala, who was Northshore’ s safety inspector at the time the citation was issued, testified that the room was dry and neither the floor nor walls had any grease upon them during the inspection.  (Tr.I 80).  Aijala testified that the lube technician was in the process of writing a work order for the underlying condition when Aijala and the inspector discovered the condition.  (Tr.I 82). 

 

Mark Steven Saari, who was the lube technician referenced by the inspector, testified that he returned to the office to submit a work order immediately after noticing the cited condition, which occurred shortly before the inspector issued a citation.  (Tr.I 118).  He did not submit the order until after the inspection, however, because Aijala asked him to return to the area of the cited condition.  (Tr.I 127).  He did not post hazard tape because he did not have any and did not believe that anyone else would enter the area.  (Tr.I 117).  Saari entered the area containing the cited condition once each week; only lube technicians had reason to enter the area and Saari was the only lube technician responsible for this area.  (Tr.I 115,124).

 

2.  Discussion and Analysis

 

            Respondent argues that the Secretary did not satisfy his burden of proving a violation of section 56.12004 because the wires were covered with insulation that protected them from mechanical damage.  The potential for damage to the insulated conductors arose when the door was opened and closed, but only lube technicians entered the room.

 

            Respondent also asserts that the citation was not S&S because the cited condition was not likely to cause an injury.  No bare copper wires were exposed and only the red wire posed a danger.  The red wire, moreover, would trip the breaker if it contacted the panel.  The control panel was also properly grounded. 

 

The fatal designation is also inappropriate, according to Respondent, because 110 volts is unlikely to cause a fatality, especially considering the use of AC power, the steel grounding system, and the electrical rated boots of the lube technician.

 

The Secretary argues that the citation was a violation of section 56.12004 that was reasonably likely to contribute to a serious injury.  The inner conductors of a heat lamp were exposed to mechanical damage from the sharp edge of a door that opened and closed against the conductor, which could lead to a fatal electrocution.  The room that housed the cited condition was covered in grease, ice, and snowmelt.  The heat lamp was not grounded and could electrify the entire panel.  The box was continually opened and closed. 

 

The Secretary contends that the citation was the result of high negligence because the condition was obvious, the operator knew or should have known of the condition, and there were no mitigating circumstances.

 

            I find that Citation No. 6556570 represented a violation of section 56.12004 because the inner conductor of the heat lamp was exposed to mechanical damage.  Although the actual copper wires were not exposed due to their insulation, the outer jacket was missing.  The purpose of the outer jacket is to protect the inner conductor from damage, especially mechanical damage.  Despite the presence of insulation, a conductor violates section 56.12004 if it lacks an outer protective jacket or structure of some sort.

 

I find that Citation No. 6556570 was not S&S because the cited condition was not reasonably likely to cause an injury.  Respondent violated section 56.12004, which posed the hazard of a lethal shock to a miner because 110 volts is likely to cause a fatality.  The Secretary failed to show, however, that the cited condition was reasonably likely to cause an injury assuming continued mining operations.  The conductors remained insulated.  That insulation would only be worn off to expose the copper wires if the door to the box was opened numerous times.  Traffic in the area was low and the box was not frequently opened.  The inspector did not note any wear or damage to the insulation at the time that he viewed the conductor.  I credit the testimony of Northshore’s witnesses that the lube technician had noticed the condition and was in the process of writing it up so that it would be corrected.  Therefore the insulation was unlikely to be damaged.  Without the insulation being damaged, a miner would be unlikely to be injured by the cited condition even when touching the insulated wires inside the box.

 

            I find that Respondent’s negligence was low because Saari credibly testified that he was in the process of getting the condition repaired before the inspector examined the electrical box.  The lube shack was only entered once or twice a week, so the condition was not an open and obvious condition.  The Secretary did not establish that the condition had existed for any length of time.

 

Citation No. 6556570 is hereby MODIFIED to a non-S&S, low negligence violation of section 56.12004.  A penalty of $200.00 is appropriate for this violation given the low likelihood that anyone would have been injured by the violation.

 

B.     Citation Nos. 6556571 and 6556572; LAKE 2011-664

 

On February 23, 2011, Inspector Soderlind issued Citation No. 6556571 under section 104(a) of the Mine Act, alleging a violation of section 56.12017 of the Secretary’s safety standards.  The citation states, in part:

 

A Lube Technician opened an electrical box and started moving inner conductors around.  The power to the electrical box was verified as having been de-energized, but it was not locked out and tagged out.  No other measures were taken to prevent someone from inadvertently energizing the electrical box in the Lube House.

 

(Ex. G-W).  Inspector Soderlind determined that an injury was unlikely to occur but that such an injury could reasonably be expected to be fatal.  Further, he determined that the operator’s negligence was moderate and that one person would be affected.  Section 56.12017 of the Secretary’s regulations requires:

 

[p]ower circuits shall be deenergized before work is done on such circuits unless hot-line tools are used. Suitable warning signs shall be posted by the individuals who are to do the work. Switches shall be locked out or other measures taken which shall prevent the power circuits from being energized without the knowledge of the individuals working on them.

 

30 C.F.R. § 56.12017.  The Secretary proposed a penalty of $585.00 for this citation.

 

On February 23, 2011, minutes after issuing Citation No. 6556572 in the same location, Inspector Soderlind issued Citation No. 6556572 under section 104(a) of the Mine Act, alleging a violation of section 56.12017 of the Secretary’s safety standards.  The citation states, in part:

 

Two electricians were working on remounting a heat lamp on the electrical box in the Lube House.  This circuit had not been locked and tagged out, and no other measures were taken to ensure the circuit would not be energized inadvertently while repairs were taking place.

 

(Ex. G-X).  Inspector Soderlind determined that an injury was unlikely to occur but that such an injury could reasonably be expected to be fatal.  Further, he determined that the operator’s negligence was moderate, and that two persons would be affected.  The Secretary proposed a penalty of $634.00 for this citation.

 

1.  Summary of Evidence

 

            Inspector Soderlind testified that he issued Citation Nos. 6556571 and 6556572 shortly after he issued Citation No. 6556570.  (Tr.I 29).  The conductors were inside the electrical box, which was the same box that the lamp referenced in Citation No. 6556570 was attached to.  Both Citation Nos. 6556571 and 6556572 resulted from Northshore employees addressing the condition cited in Citation No. 6556570.

 

The inspector issued Citation No. 6556571 as a result of the lube technician opening the electrical box and touching the conductors without locking or tagging it out and he issued Citation No. 6556572 as a result of the same actions performed by two electricians.  (Tr.I 28).  Saari testified that he did not handle any conductors or wires within the electrical box; he inspected the box visually.  (Tr.I 129).  In both instances, the circuits were deenergized, but there were no locks, guards, or signs to prevent the circuits from being reenergized.  (Tr.I 31, 34).

 

Inspector Soderlind designated Citation Nos. 6556571 and 6556572 as unlikely to lead to an injury and non-S&S because the circuit was de-energized.  (Tr.I 41).  The inspector designated the likely injury to a miner as a fatality.  Id.

 

The inspector designated Citation Nos. 6556571 and 6556572 as the result of Respondent’s moderate negligence.  The inspector testified that a manager of Northshore witnessed the violation cited in Citation No. 6556571 and did nothing to stop the actions of the lube technician.  (Tr.I 42).  The Inspector also believed that “everybody knows” that they must lock and tag out circuits.  (Tr.I 43).

 

Tim Aijala accompanied Inspector Soderlind during his inspection.  Aijala testified that the lube room was small and two people could fit inside it, but uncomfortably.  (Tr.I 79).  While the inspector viewed the lube technician touching the conductors, Aijala was outside of the lube room because three people could not fit in the room.  (Tr.I 85-86).  Aijala testified that he stayed within view of the motor control center (“MCC”) the entire time the electricians and the lube technician contacted the electrical box.  (Tr.I 86-89).  The MCC was adjacent to the lube shack.  No one could enter the MCC room to reenergize the electrical box without Aijala seeing them; the area had little traffic and even less pedestrian traffic.  (Tr.I 109). 

 

Mike Ketola, the process manager at Northshore, is an electrical engineer.  He testified that it was highly unlikely that the cabinet could become electrified because the circuit breaker would trip and the entire electrical system was grounded appropriately.  (Tr.I 138-39, 144).  Ketola did not believe that a fatality was likely to result from the underlying conditions.  (Tr.I 141).

 

2.  Discussion and Analysis

 

Respondent contends that it did not violate section 56.12017 as alleged in Citation Nos. 6556571 and 6556572.  Relating to Citation No. 6556571, Saari did not contact the conductors and therefore did not perform “work.”  With regard to both citations, Aijala acted as a sentry, complying with section 56.12017 by supplying “other measures” to prevent the power circuits from becoming reenergized.

 

Respondent asserts that Citation Nos. 6556571 and 6556572 are not the result of moderate negligence.  Aijala did not witness Saari contact the conductors inside the panel and Respondent trains employees to perform lock out and tag out procedures when doing electrical work.  Respondent’s management was not aware of the cited condition and any negligence concerning either citation is attributable to hourly workers only.  Citation Nos. 6556571 and 6556572, therefore, are not the result of Respondent’s moderate negligence.

 

The Secretary argues that Citation Nos. 6556571 and 6556572 both violated section 56.12017 because Northshore employees worked on an electrical box without locking or tagging out the power circuit.  The inspector issued Citation No. 6556571 when he witnessed a lube technician touching inner conductors with his bare hands.  The inspector issued Citation No. 6556572 when he saw electricians contact the inner conductors without locking or tagging out the circuit.  With regard to both Citation Nos. 6556571 and 6556572, Respondent did not lock out, tag out, or use any alternative methods to prevent a circuit from being reengergized while miners worked upon it, which is a violation of section 56.12017.

 

The Secretary also argues that Citation Nos. 6556571 and 6556572 were the result of high negligence because the condition was obvious, the operator knew or should have known of the violations, and there were no mitigating circumstances.

 

I find that Citation Nos. 6556571 and 6556572 were violations of section 56.12017.  Respondent did not lock or tag out the circuit while two electricians worked upon it.  I also credit Inspector Soderlind’s testimony that Saari contacted and worked upon the same conductor without locking or tagging out that conductor.  Although Aijala testified that he remained within sight of the MCC room, I find that his presence did not constitute “other measures” under the standard.  I find that Aijala stood outside of the lube shack because the room was too small to fit him, not with the specified intent of stopping the power circuit from being reenergized.  If Aijala stood in his position with the actual intent of preventing reenergization, he would have positioned himself directly in front of the door to the MCC.  He could also have locked the door to the MCC room, which is what Inspector Soderlind made the electricians do when he noticed them working without following lock out and tag out procedures. 

 

Three employees, two of which were electricians, worked on electrical conductors without locking and tagging out the circuit, suggesting that Respondent has not been vigilant in following its lock out and tag out procedures.  Although Aijala’s presence contributed to the unlikely designations of these citations, I find that it did not qualify as the “other measures” that “shall prevent the power circuits from being energized.”  Respondent violated section 56.12017 twice; once when its lube technician worked on a conductor that was not locked out or tagged out and once when two of its electricians did so.

 

I find that an injury was highly unlikely in this instance.  The violations occurred in a remote area so it was extremely improbable that anyone would have entered the MCC to close the circuit, especially since Mr. Aijala was in the area.  The violations were not S&S. 

 

I find that Citation Nos. 6556571 and 6556572 were the result of Respondent’s moderate negligence.  Respondent should have known of these violations, as its safety inspector was present at the time.  Three employees, two of which were electricians, did not lock or tag out the circuit while they performed work upon it, suggesting that Respondent has been negligent in training or enforcing its lock-out procedures.    

 

Citation Nos. 6556571 and 6556572 are hereby AFFIRMED.  A penalty of $500.00 for each violation is appropriate because of the low likelihood that the violations would have resulted in any type of injury.

 

C.    Citation No. 6556582; LAKE 2011-664

 

On March 3, 2011, Inspector Soderlind issued Citation No. 6556582 under section 104(a) of the Mine Act, alleging a violation of section 56.14112(b) of the Secretary’s safety standards.  The citation states, in part:

 

One miner was operating a hand-held electric grinder without the provided guard in place during operation.  No fire extinguisher was present at this location at the time.  This condition exposes miners to coming in contact with moving machine parts resulting in lacerations, burns and/or other injuries.

 

(Ex. G-V).  Inspector Soderlind determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost workdays or restricted duty.  Further, he determined that the violation was S&S, the operator’s negligence was moderate, and that one person would be affected.  Section 56.14112(b) of the Secretary’s regulations requires that “[g]uards shall be securely in place while machinery is being operated, except when testing or making adjustments which cannot be performed without removal of the guard.”  30 C.F.R. § 56.14112(b).  The Secretary proposed a penalty of $1,530.00 for this citation.

 

1.  Summary of Evidence

 

Inspector Soderlind issued Citation No. 6556582 as a violation of section 56.14112(b) caused by the operator’s moderate negligence because he observed two miners working to thaw a frozen pipe and one was using a grinder without its guard.  (Tr.I 155).  That miner admitted to removing the guard and then using the grinder, even though he knew that doing so violated the Mine Act.  (Tr.I 158, 161).  The inspector testified that the grinder was used in a visible, high traffic area of the Mine.  (Tr.I 157).  The inspector initially thought that this citation resulted from Respondent’s high negligence, but he could not establish that management had any knowledge of the condition.  Id.

 

 Tim Aijala testified that the area where the miners were working was easy to see, but that it was difficult to discern that the miner was using a grinder without a guard.  (Tr.I 173-74).  The miners were given a grinder with a guard, but they removed the guard to accommodate a larger cutting wheel.  If the miners wanted to use a larger grinder with a guard, they could have walked 50 feet to a maintenance silo to obtain one, which is the action the miners took to terminate the citation.  (Tr.I 171).  Aijala testified that Respondent has a “self-directed” workforce; it depends upon thoroughly training its employees and having the employees rely upon that training instead of providing constant supervision.  (Tr.I 176, Tr.II 30).

 

Scott Blood, the senior safety representative at Northshore, testified that the miners who removed the guard from the grinder were disciplined.  The training at Northshore makes miners aware that they should not tamper with safety equipment and the miners who removed the guard from the grinder should have known not to do so.  (Tr.I 183-84).  The disciplined miners were experienced and Blood did not believe that Respondent’s management could have done anything further to prevent their actions.  (Tr.I 184).

 

2.  Discussion and Analysis

 

Respondent does not dispute the violation of section 56.14112(b) and the S&S designation of Citation No. 6556582, but disputes the moderate negligence determination and the amount of the penalty.  The negligence of rank-and-file, hourly miners cannot be attributed to management.  The miners involved knowingly acted against their training and were in an area where a passerby could not see their tools. The Secretary’s moderate negligence designation is unfounded because Respondent should not have known of the cited conditions.

 

            The Secretary argues that the violation was the result of Respondent’s moderate negligence because the condition was obvious and Respondent should have known of the condition when it assigned the miner to work on the frozen pipe.

 

            I find that Respondent’s violation of section 56.14112(b) was the result of Respondent’s low negligence.  The negligence of rank-and-file miners is not attributable to an operator for the purposes of negligence designations and penalty amounts.  Southern Ohio Coal Co., 4 FMSHRC 1459, 1462 (Aug. 1982).  When, however, “a rank-and-file employee has violated the Act, the operator's supervision, training and disciplining of its employees must be examined to determine if the operator has taken reasonable steps to prevent the rank-and-file miner's violative conduct.”  Id.  (emphasis in original).  Northshore trains its workforce but then, once trained, the workforce is largely self-supervised.  In this instance, management would not have known that the two miners used a grinder without a guard unless it had a supervisor standing right in the immediate vicinity.  Under the facts of this case, I find that the negligence of the two miners should not be attributed to management.  This finding is, by necessity, very factually specific and situations could arise in which the failure to more closely supervise employees could lead to a higher level of negligence.  

Citation No. 6556582 is hereby MODIFIED to reduce the negligence to “low.”  A penalty of $800.00 is appropriate for this violation.

 

D.    Citation No. 6556545; LAKE 2011-482

 

On January 12, 2011, Inspector Soderlind issued Citation No. 6556545 under section 104(a) of the Mine Act, alleging a violation of section 56.12004 of the Secretary’s safety standards.  The citation states, in part “[t]here was a broken piece of conduit running along the outside of the Pellet Plant behind furnace number 6 exposing miners to electrical shock/burn hazards resulting in serious injury.”  (Ex. G-R).  Inspector Soderlind determined that an injury was unlikely to occur but that such an injury could reasonably be expected to be fatal.  Further, he determined that the operator’s negligence was moderate and that one person would be affected.  The Secretary proposed a penalty of $2,901.00 for this citation.

 

1.  Summary of Evidence

 

            Inspector Soderlind testified that the citation was a violation of section 56.12004 due to exposed conductors.  (Tr.I 185; Ex. G-R).  Two sections of the metal conduit were detached approximately 6 to 7 feet above the ground on the exterior of a building.  (Tr.I 189-90; Ex. R-T).  An electrician certified that the conductors were exposed and that the circuit was live.  (Tr.I 190).   In the inspector’s opinion, this condition was unlikely to cause injury.  (Tr.I 195).  The conduit carried 480 volts, which could cause a fatality.  (Tr.I 192-93). 

 

The conductors were not damaged, but the Inspector was concerned that weather or the act of opening and closing a nearby door would cause mechanical damage to the conductors.  (Tr.I 198, 205).  He was primarily concerned that an exterior door located about 90 to 100 feet away was banging against the metal conduit.  (Tr.I 218).  Inspector Soderlind acknowledged that the circuit may or may not be grounded.  (Tr.I 207).

 

Inspector Soderlind believed that this condition was obvious.  (Tr.I 196, 217).  He also testified that Respondent was put on notice that greater efforts to comply with section 56.14112 were necessary because over the two prior years, Respondent was cited 51 times under the section.  (Tr.I 196, 212 ).  The inspector did not know how long the condition existed.  (Tr.I 210).

 

            Brian Gene Hill, who works at Northshore in pelletizer operations, escorted Inspector Soderlind on his January 12, 2011, inspection.  (Tr.I 221).  Hill testified that the area where the cited conductor was exposed is not well-traveled, seldom passed by pedestrians, and vehicles passed 20 to 30 feet away.  (Tr.I 222, 229).  Hill did admit that pedestrians will sometimes walk through this area due to spillage in the building, which is what he and the inspector did.  (Tr.I 232-33).  Miners sometimes park vehicles in the area to perform mechanical work.  Id.

 

Hill testified that the conductor was still protected and that there were no hazards that could damage the remaining protection.  (Tr.I 225-26).  He also testified that he would not perform the simple task of fixing the conduit covering because he is not an electrician.  (Tr.I 228).  Hill stated that no one examined this area and that he did not believe that examinations were required.  (Tr.I 227).

2.  Discussion and Analysis

 

            Respondent argues that it did not violate section 56.12004 because the conductor was neither exposed to mechanical damage nor unprotected.  The Secretary did not show that the conductor was exposed to mechanical damage because the inspector’s testimony was unreliable.  The conductor was not bare copper wire; it was protected by a black outer jacket. 

 

            Any injury or illness could not reasonably be expected to be fatal according to Respondent.  The electrical systems at the Mine are grounded to prevent electricity from traveling through human bodies.

 

            The Secretary argues that the cited condition was unlikely to cause an injury, but that the resulting injury was reasonably likely to be fatal because although the conductor was distant from the ground, it carried 480 volts of electricity.

 

            The Secretary also argues that the citation was the result of Respondent’s moderate negligence because the condition was obvious; Respondent was on notice that greater efforts were necessary to comply with section 56.12004, and Respondent should have known about the condition.

 

            I find that Respondent violated section 56.12004.  I credit Inspector Soderlind’s testimony that the cited condition exposed a conductor to mechanical damage.  Although the copper wire was not visible, the conductor was not adequately protected from mechanical damage.  The opening and closing door was cited as the cause of the damage to the conduit, but it was 100 feet away.  The precise cause is unknown.  An injury was unlikely because the outer jacket around the conductors was intact.  The violation was not S&S.  A fatal accident could not occur unless the outer jacket was damaged, the copper wires were exposed, and the grounding system failed to function.  The chance of a fatal accident was remote at best.

 

            I also find that Northshore’s negligence was low to moderate.  On one hand, it was on notice to fully protect conductors from mechanical damage.  On the other hand, the violation was in a remote location that was not a working place or near a working place.   See 30 C.F.R. § 56.2.

 

Citation No. 6556570 is hereby MODIFIED to reduce the negligence slightly.  A penalty of $500.00 is appropriate for this violation.

 

E.     Citation No. 6556888; LAKE 2011-664

 

On February 15, 2011, Inspector Robert A. Marincel issued Citation No. 6556888 under section 104(a) of the Mine Act, alleging a violation of section 56.14132(b)(1)(i) of the Secretary’s safety standards.  The citation states, in part:

 

A GMC 3500 flatbed high rail truck, company number CAR-20, was not provided with an automatic reverse activated back up alarm, exposing miners to a back into/over hazard.  The truck had a restricted view to the rear from a Sullair compressor mounted on the bed of the truck.  The truck was observed backing at the north side of the tails load out building, without a spotter present, or any audible alarm.

 

(Ex. G-L).  Inspector Marincel determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal.  Further, he determined that the violation was S&S, the operator’s negligence was low, and that one person would be affected.  Section 56.14132(b)(1)(i) of the Secretary’s regulations requires that “[w]hen the operator has an obstructed view to the rear, self-propelled mobile equipment shall have…an automatic reverse-activated signal alarm[.]”  30 C.F.R. § 56.14132(b)(1)(i).  The Secretary proposed a penalty of $1,304.00 for this citation.

 

1.  Summary of Evidence

 

            Inspector Robert Marincel testified that he issued the citation because he observed a vehicle with a restricted rear-view travel in a reverse direction and did not hear an automatic back-up alarm function, which is a violation of section 56.14132(b)(1).  (Tr.II 40, 50).  Inspector Marcincel testified that the cited vehicle travels throughout the plant and into areas with foot traffic.  (Tr.II 43-44).  The foot traffic in the area where the inspector cited the vehicle was the inspector himself and Aijala, but he believed contractors used the area as well.  (Tr.II 43).

 

            The cited condition caused the hazard of a miner being struck or run over by the vehicle.  (Tr.II 46).  The inspector believed that the cited condition was reasonably likely to cause an injury because the vehicle was used throughout the plant in areas foot traffic would be present and also during times of darkness.  (Tr.II 47).  Inspector Marincel designated the citation as fatal because the vehicle could crush a miner and cause a fatality.  (Tr.II 50). 

            Inspector Marincel designated Citation No. 6556888 as the result of Respondent’s low negligence.  He believed that the cited condition existed for about a month and that Respondent should have known of the condition.  (Tr.II 38, 48).

 

            Aijala testified that there was no foot traffic in the cited area except for miners who were actually using the vehicle.  (Tr.I 242).  The vehicle in question is a GMC pick-up truck, not a piece of heavy equipment, according the Aijala.  (Tr.I 253).  The vehicle moved an average of three times during each 12 hour shift for a total of 400 yards each time.  (Tr.I 252).  The vehicle only traveled in reverse once per 12 hour shift, at the beginning of each shift, when the examiner of the vehicle served as a spotter.  (Tr.I 247, 252).  There were no pedestrians in the parking lot when the vehicle reversed.  (Tr.I 252).  At all other times, the vehicle turned around in a loop because there wasn’t space to turn around in another manner.  (Tr.I 242).  There were no other vehicles that operated in this low-traffic area.  Id.

 

Aijala claims that he and the inspector did not witness the vehicle reverse.  (Tr.I 255).  The vehicle travels to other sections of the mine 10 percent of the time.  (Tr.I 259, 263-64).  The obstruction that blocked the driver’s sight on the vehicle existed for a month before the inspector issued the citation.  (Tr.I 261).  There was also a crane and a contractor’s trailer in the area where the inspector cited this condition.  (Tr.I 262-63).

 

2.  Discussion and Analysis

 

Respondent argues that it did not violate section 56.14132(b)(1)(i) and was not negligent for doing so because the cited vehicle never reversed without the use of a spotter.  The inspector did not witness the truck reverse until he requested the truck to do so and the inspector acted as the spotter at that time.  Aijala’s testimony and Respondent’s standard practices contradict the inspector’s claim that he viewed the truck reverse without a spotter. 

 

If the cited condition did violate section 56.14132(b)(1)(i), however, Respondent contends that the citation was not S&S.  The truck is used sparingly in an area with little traffic and does not typically reverse.  When the truck reversed, a spotter was used.  The rear view of the truck was only partially obstructed and dual side mirrors provided a rear view.

 

The Secretary argues that Citation No. 6556888 is an S&S violation of section 56.14132(b)(1)(i).  Inspector Marincel witnessed the cited vehicle, which had a restricted rear view, travel in reverse with no back-up alarm or spotter.  This created the hazard that a pedestrian could be struck by the vehicle, which is reasonably likely to be fatal.  An injury was reasonably likely to occur because the cited vehicle operates at various locations throughout the mine that have foot traffic and it operates during both day and night.  The Secretary contends that the violation was the result of Respondent’s high negligence because the cited condition existed for 30 days.

 

I find that Respondent violated section 56.14132(b)(1)(i).  To satisfy his burden, the Secretary must prove that the operator reversed the cited equipment without either a backup alarm or a spotter.  See River Cement Co., 10 FMSHRC 1027, 1029-30 (Aug. 1988) (ALJ).  I credit Inspector Marincel’s testimony that he witnessed the vehicle travel in reverse without either a back-up alarm or spotter.  Respondent, therefore, violated section 56.14132(b)(1)(i) because the Secretary provided convincing evidence of a specific time when the cited vehicle reversed without either a spotter or a backup alarm.  I do not credit the company’s evidence that a spotter is always present when the truck is operated in reverse.

 

I also find that the violation was S&S.  The cited condition presented the hazard that a miner would be struck or run over by the cited vehicle, which could cause a fatal injury.  Although Respondent argues that the vehicle was seldom used, not used close to pedestrians, and did not often reverse, I find that an injury was reasonably likely to occur.  I credit the uncontroverted testimony of the inspector and Aijala that vehicles of the model cited by the inspector are used throughout the mine.  Even if the vehicle is seldom used and only in one area as Respondent argues, the failure to have a functioning back-up alarm creates a serious risk that a pedestrian would be hit. I credit the inspector’s testimony that contractor employees were present at the facility and their presence made the lack of a back-up alarm especially hazardous.

 

I find that the violation was the result of Respondent’s moderate negligence.  The inspector designated the negligence as low, but the Secretary argues that it should be raised to high.  I find the negligence to be moderate because the compressor that obstructed the view of the driver had recently been installed on the back of the truck.  Placing the compressor at the back of the truck should have alerted Northshore that a functioning backup alarm must be present.

 

Citation No. 6556888 is hereby MODIFIED to a moderate negligence designation.  A penalty of $2,000.00 is appropriate for this violation.

 

F.     Citation No. 6556561; LAKE 2011-664

 

On February 22, 2011, Inspector Soderlind issued Citation No. 6556561 under section 104(a) of the Mine Act, alleging a violation of section 56.11001 of the Secretary’s safety standards.  The citation states, in part:

 

The main gas ductwork on the south side of the 502 and 602 precipitators was being used to access the main duct sprayers.  No hand rail was provided.  Foot tracks were easily observed in the fines material and measured less than 2 ft. away from the edge of the ductwork where a fall of approximately 15 ft. existed.  There were also five inch high seams for the ductwork every three feet, approximately, which created a tripping hazard.

 

(Ex. G-Y).  Inspector Soderlind determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal.  Further, he determined that the violation was S&S, the operator’s negligence was moderate, and that one person would be affected.  Section 56.11001 of the Secretary’s regulations requires that “[s]afe means of access shall be provided and maintained to all working places.”  30 C.F.R. § 56.11001.  The Secretary proposed a penalty of $2,901.00 for this citation.

 

1.  Summary of Evidence

 

            Inspector Soderlind issued the citation because he believed, based upon the presence of footprints, that miners had walked across elevated ductwork that exposed them to a 15 foot fall.  (Tr.I 272).  The duct was 5.5 feet wide and footprints were visible 2 feet from the drop-off.  (Tr.I 276).  Although chains blocked the path to the ducts, the chains were not fastened during the inspection.  (Tr.I 276).  Inspector Soderlind testified that manager Lyle Dugas told him that miners might have walked across the duct as a shortcut.  (Tr.I 274).  The ducts lacked handrails and the inspector observed no evidence that miners who crossed it had used fall protection.  (Tr.I 275, 279).  Pieces of ductwork project five inches upward, with the result that the surface of the duct is not a flat surface.  (Tr.I 273, 277).  There was safe access to the sprayers on the other side of the sprayers, but miners presumably used the cited access as a shortcut to access the sprayers.  (Tr.I 296).  The inspector did not witness any miners using the cited access point or walking upon the ductwork.  (Tr.I 285).

 

Inspector Soderlind testified that he did not see evidence suggesting the use of fall protection, but he also stated that he expected it to be used in the area and it could have been used.  (Tr.I 275-76).  He did not view any points where a miner could attach fall protection, but he did not remember specific features of the area either.  (Compare Tr.I 279, 293 with Ex. R-NN).  He further testified that this citation could be abated by the operator using fall protection to access the work area from every access point.  (Tr.I 283).

 

            Inspector Soderlind believed that the 15 foot fall onto hard surfaces and sharp metal framework below the ductwork would likely result in a fatality.  (Tr.I 280).  The inspector testified that it was reasonably likely that a miner would fall off of the duct.  Id.  Inspector Soderlind testified that dust accumulated in the area quickly, but that there were still several evident tracks.  Id.  The edges that stuck up above the ducts could cause a miner to trip, especially because the area was dark.  Id.  Respondent presented no evidence to the inspector that miners used fall protection in the cited area.  (Tr.I 284).

           

            Inspector Soderlind designated the violation as being the result of Respondent’s moderate negligence because the condition was obvious.  (Tr.I 281).  The clasp on the chain barrier that was down was corroded shut, which suggested that this condition existed for an extended period of time.  (Tr.I 281).

           

            Hill testified that the cited ducts had thermal couplers and a flop-gate upon them that sometimes required maintenance.  (Tr.II 6).  Hill testified that the subject footprints likely existed for a period of time.  (Tr.II 9).  Miners were required to travel upon the ducts to perform maintenance following an occurrence such as a furnace outage.  (Tr.II 8; Ex. R-F).  Miners performing this maintenance would be wearing fall protection and the area provided places to tie off.  (Tr.II 9).  Hill believed that Lyle Dugas’ statements to the inspector about why the duct was used must be correct.  (Tr.II 13).  Hill testified that a miner was not likely to fall off of the ductwork in the cited area because any miner working upon the ductwork would be tied off and would have to be well out of the work area to fall.  (Tr.II 16).

 

            Blood testified that miners were required and trained to use fall protection in the cited area.  (Tr.II 25-26).  Blood testified that there were points for miners to secure fall protection in the cited area.  (Tr.II 28, 32).

 

2.  Discussion and Analysis

 

            Respondent argues that it did not violate section 56.11001 because it provided safe access to its miners.  The Secretary failed to prove that safe access was not provided and maintained in the cited area and the inspector focused on the use of fall protection instead of safe access.  Respondent required the use of fall protection to access the cited area.  The inspector did not realize that the cited access point was the safest access to maintain thermal couplers and not a shortcut to the sprayers.  The detachable chain used on the cited access point shows that it was not merely a shortcut.

           

Respondent also argues that the use of fall protection and the safety of a work area are unrelated to the safe access required by section 56.11001.  The cited point of access did not present a hazard to miners; the hazard of a 15 foot fall cited by the inspector pertained to the working area, not the access point.

 

Respondent asserts that Citation No. 6656561 was not S&S because the Secretary failed to establish a reasonable likelihood that the cited condition would contribute to an injury.  The fall hazard existed away from the area where miners would be traveling, very few miners traveled in the area, and the tripping hazards were clearly visible.

 

            The Secretary argues that Citation No. 6656561 was S&S because the cited condition was reasonably likely to contribute to a serious injury.  A 15foot fall onto hard ground created a safety hazard that could cause a fatal accident.  The area was dark, there were flanges to trip on, and miners did not wear fall protection.  Based upon the foot traffic in the area and the footprints upon the ductwork, an injury was reasonably likely to occur.

 

            The Secretary also argues that Respondent’s moderate negligence caused the condition cited in Citation No. 6656561.  The condition was obvious, existed for some time, and management actually knew of the cited condition.

 

            I find that the Secretary did not satisfy his burden to show that Respondent failed to provide a safe means of access to a work area in violation of section 56.11001.  Fall protection can constitute a safe means of access for the purposes of section 56.11001 if the operator maintains the requirement to use that fall protection.  See Lopke Quarries, Inc., 23 FMSHRC 705, 709 (2001).  Although the Inspector did not see evidence that fall protection was used and the operator did not inform him that it was at the time of the inspection, he admitted that fall protection may have been used and did not see any miners access the ductwork without using such protection.  In addition, even though the inspector testified that he did not see any places for a miner to secure fall protection, he seemed unsure about the specific features of the area, whereas witnesses for Respondent, who are more familiar with the cited area, confidently described various points where a miner could safely secure fall protection while working on the ductwork.  The Secretary failed to satisfy his burden to show that a safe means of access was not provided by Respondent. 

 

Citation No. 6656561 is hereby VACATED.

 

G.    Citation No. 6556827; LAKE 2011-482

 

On January 5, 2011, Inspector Marincel issued Citation No. 6556827 under section 104(a) of the Mine Act, alleging a violation of section 56.11001 of the Secretary’s safety standards.  The citation states, in part:

 

A safe means of access was not provided to load the used mantels and bowls onto the flatbed trailer in the east truck bay, exposing miners to a fall hazard.  Some miners used a 6 foot ladder to either access the trailer bed to remove the lifting slings from the mantels and then cut off the pad eyes prior to shipping, or just stand on the ladder to remove slings and cut off the pad eyes.  The ladder at the site was 30 inches from the north side hand railing….The next floor down beyond the hand railing was 15 feet 10 inches from the top of the railing.

 

(Ex. G-I).  Inspector Marincel determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal.  Further, he determined that the violation was S&S, the operator’s negligence was low, and that one person would be affected.  The Secretary proposed a penalty of $1,944.00 for this citation.

 

1.  Summary of Evidence

 

            Inspector Marincel issued the citation as a violation of section 56.11001 because he saw a 6-foot ladder set up beside a handrail in the fine crusher building.  (Tr.II 85).  The handrail was 15 feet and 10 inches above a concrete floor.  (Tr.II 73).  Climbing the ladder placed a miner’s entire body above the handrail; the handrail was 37.5 inches high while the highest ladder rung being used was 45.5 inches high.  (Tr.II 71-72).  The handrail was 30 inches from the ladder.  (Tr.II 73).  Miners climbed the ladder to remove pad eyes with a torch.  (Tr.II 71).  The hose for the cutting torch could cause the ladder to tip, throwing the miner over the handrail.  Id.  A sufficient distance for the ladder to be away from a railing would be the sum of the height of the person and the height of the ladder combined.  (Tr.II 92).  Inspector Marincel testified that miners would not be required to use fall protection while working upon the ladder.  (Tr.II 83).  The ladder was stable.  (Tr.II 85).

 

            Inspector Marincel designated the citation as S&S.  Marincel believed that the cited condition was reasonably likely to contribute to an injury because he assumed that the operator continually worked on the crusher components and changed crusher bowls and mantels once each week.  (Tr.II 74).  The inspector stated that falls of eight feet can be fatal, which is why he believed the hazard of a 15 foot, 10 inch fall was likely to cause a fatality.  (Tr.II 78).

 

            Brandon Goutermont, a fine crusher operator, testified that he escorted Inspector Marincel on January 5, 2011.  Goutermont testified that he used the ladder to climb onto the trailer to remove the pad eyes.  (Tr.II 104).  He did not carry the torch on the ladder because he could reach the top of the trailer to place the torch there.  (Tr.II 105).  A miner would work in the area of the cited condition about once each week.  (Tr.II 112).  The ladder was typically only used by employees who were too short to reach the pad eyes from the floor.  (Tr.II 77, 85-86, 112-13).   The ladder has been used for this purpose for at least four years.  (Tr.II 107). 

 

2.  Discussion and Analysis

 

            Respondent argues that it did not violate section 56.11001 because the ladder in the cited area provided safe access.  It is undisputed that a ladder is a safe means of access, that the cited ladder was in good condition, and that it was placed on solid ground 30 inches from the handrail.  Miners maintained three points of contact while using the ladder.  The use of the ladder did not present a hazard and under the reasonably prudent person test Respondent did not violate section 56.11001.

 

            Respondent also argues that Citation No. 6556827 was not S&S.  Inspector Marincel based the S&S designation upon a dissimilar fatalgram and did not see or know how the cited ladder was being used.  The ladder was stable, in good condition and seldom used.  The Secretary did not present evidence to prove that Citation No. 6556827 was S&S.

 

            The negligence designation for Citation No. 6556827 should be “None” because the cited condition existed during various inspections over the course of seven years and was not cited according to Respondent.  Respondent could not have known that the condition constituted a violation of section 56.11001.

 

            The Secretary argues that a miner’s feet would be above the handrail when stepping on to the rung of the ladder closest to the top of the trailer, which could cause the ladder to tip and force the miner to fall over the top of the rail. 

 

            The Secretary also argues that the citation was S&S.  An injury was reasonably likely to occur due to the frequency with which miners must cut pad eyes off of bowls and mantles.  The cited condition posed the hazard of a 15 foot drop onto concrete, which is likely to cause a fatal injury.  The inspector’s determination that the violation was the result of Respondent’s low negligence should be affirmed because management was apparently unaware that the ladder was used in the cited manner.

 

            I find that the condition cited in Citation No. 6556827 did not violate section 56.11001.  The Secretary failed to satisfy his burden to show that a violation existed.[2]  Although Inspector Marincel testified that a miner could capsize the ladder during a descent and fall over the railing, the inspector also agreed that the cited ladder was stable, secure, and would be safe if it were further from the railing.  If the ladder would not present a hazard when moved further from the railing, it would not present a hazard 30 inches from the railing either.  Increased distance from a railing does not make a ladder less likely to tip and fall.  Although the possible injury a miner could sustain may depend upon the location of a ladder, a violation of section 56.11001 does not depend upon the distance of a fall from a ladder.   It is undisputed that a solidly erected ladder can provide a means of safe access to a working place.  There was no showing by the Secretary that Northshore’s employees misused the ladder to create a hazard of falling. 

 

            Citation No. 6556827 is hereby VACATED.

 

H.    Citation No. 6492348; LAKE 2010-756

 

On January 12, 2011, Inspector Thaddeus Sichmeller issued Citation No. 6492348 under section 104(d)(1) of the Mine Act, alleging a violation of section 56.11016 of the Secretary’s safety standards.  The citation states, in part:

 

The snow was not being removed sanded or salted where person[s] were accessing the entrance of the guard shack and in the rear of the building where the portable generator was operating….Multiple footprint[s] were observed, created by person[s] accessing the guard shack in the buildup of snow along with the generator area.

 

(Ex. G-C).  Inspector Sichmeller determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in lost workdays or restricted duty.  Further, he determined that the violation was S&S, the operator’s negligence was high, and that one person would be affected.  The citation was the result of Respondent’s unwarrantable failure to comply with a section 56.11016.  Section 56.11016 of the Secretary’s regulations requires that “[r]egularly used walkways and travelways shall be sanded, salted, or cleared of snow and ice as soon as practicable.”  30 C.F.R. § 56.11016.  The Secretary proposed a penalty of $8,400.00 for this citation.

 

1.  Summary of Evidence

 

Inspector Sichmeller issued Citation No. 6492348 as a violation of section 56.11016 because Respondent did not clear 1 to 2 inches of snow at the entrance to the rear of the guard shack where a portable generator was located, which created a slip and fall hazard.  (Tr.II 120, 124).  The inspector noted that the snow contained many footprints.  (Tr.II 121).  The compacted snow was slippery.  (Tr.II 141).  This hazard could affect anyone who entered the mine because mine policy required that all people checking in at the mine must go to the guard shack.  (Tr.II 124).

 

On January 6, 2011, Inspector Sichmeller notified Respondent that he was concerned about their snow and ice removal.  (Tr.II 132).  The mine had received previous citations alleging the failure to remove snow and miners had previously slipped and fell due to snow.  (Tr.II 132, 142).  The mine had recorded seven slip and fall injuries, three of which were snow and ice related.  (Tr.II 143; Ex. G-DD).  The inspector also informed Respondent that future violations would entail elevated negligence designations.   (Tr.II 132).  On January 7, 2011, Inspector Sichmeller discussed snow and ice conditions with two members of Respondent’s management, one of whom argued that injuries at the mine were not snow and ice related.  (Tr.II 135).

 

On January 11, 2011, Inspector Sichmeller notified Respondent during their daily close-out meeting that snow must be removed from the guard shack and the parking lots.  (Tr.II 128).  When the inspector returned to the mine on January 12, 2011, snow was present at the guard shack entrance.  Id.  Respondent notified Inspector Sichmeller that it had not cleared the snow due to darkness, but miners continued to access the area after dark.  (Tr.II 129).

 

Inspector Sichmeller believed that an injury was reasonably likely to occur due to the number of previous slip and fall accidents at Respondent’s mine as well as in the industry in general.  (Tr.II 146).  Inspector Sichmeller testified that he designated Order No. 6492348 as likely to cause lost work days or restricted duty because sprains, strains and broken bones often result from slips and falls.  (Tr.II 145-46).

 

The cited condition was obvious, existed for about two days, was extensive, and management had knowledge and prior notice of the cited condition because the inspector notified management about the condition the day before he issued the violation.  (Tr.II 147-48).

 

Scott Blood testified concerning Respondent’s snow removal policies.  After a snowfall, two trucks work to clear the snow from the roads and parking lots and continue working until all areas are cleared.  (Tr.II 174-75).  A shovel and a mix of sand and salt are located at each entrance and miners are instructed to use the equipment to clear the entrances when they use the entrance.  (Tr.II 175).  Snow will not be cleared until a miner accesses a particular entrance.  (Tr.II 175-76).  Blood testified that on January 11, 2011, he asked the inspector if the area that needed to be cleared of snow was in front of the guard shack, where the plows were unable to reach certain “V” shaped patches of snow.  (Tr.II 184, 209).  When the inspector answered in the affirmative, Blood immediately called and instructed an employee to clear the discussed patches of snow, which that employee did.  (Tr.II 185; Ex. R-QQ).  Blood rushed to make the call because the heavy equipment operators leave the mine at 3:00 p.m. and it was approaching 3:00.  (Tr.II 210).  Blood testified that had he known that the area behind the guard shack needed to be cleared, it could have been shoveled.  Id.  Blood testified that he did not know that the area near the generator needed cleared and testified that the inspector did not alert him that it did.  (Tr.II 187).  Blood believed that Respondent “did exactly what [the inspector] asked” of it on January 11, 2011.  (Tr.II 197).  There was no ice present, even beneath the snow.  (Tr.II 173, 196; Ex. R-QQ)

 

After January 6, 2011, when Inspector Sichmeller alerted Respondent that its snow removal was insufficient, Blood reminded employees to clear and spread salt at all entrances.  (Tr.II 192).  Blood testified that he and most other managers do not enter through the guard shack and did not know of the snow between the shack and the generator.  (Tr.II 205).

 

Inspector Sichmeller testified that on January 11, 2011, he informed Respondent’s management that snow must be cleared from parking areas in the entire mine and “access to the guard shack[.]”  (Tr.II 212).  The inspector did not use the words “sidewalk,” ”travelway,” or “walkway up to the steps” during this conversation.  (Tr.II 216).

 

2.  Discussion and Analysis

 

Respondent argues that it did not violate section 56.11016 because the cited area was not a regularly used walkway or travelway.  Section 56.11016 does not require that operators remove snow from every surface, only snow that is located on regularly traveled walkways.  Respondent cleared all of its regularly used walkways and provided access to the guard shack before the inspector issued Citation No. 6492348.  The area between the guard shack and the generator was not regularly traveled and the generator had only been present for one day. 

Citation No. 6492348 was not S&S because the cited condition was unlikely to contribute to an injury, asserts Respondent.  The snow that was present was too insignificant to be slippery, constitute a hazard, or be a violation of section 56.11016.  There was no ice and no injuries have been reported as a result of slipping upon snow without ice.

 

Citation No. 6492348 was not the result of Respondent’s unwarrantable failure because its conduct was not “aggravated,” according to Respondent.  The cited condition was not obvious, extensive, and the operator made a good faith effort to abate the condition before it was cited by the MSHA inspector.

 

The Secretary argues that Citation No. 6492348 was S&S because compacted, slippery snow was reasonably likely to contribute to a serious injury.  The area behind the guard shack was regularly traveled for as long as the generator remained in place; a failure to promptly sand, salt or clear this area of snow constituted a violation of section 56.11016 and could cause injuries including sprains, strains, or broken bones.  The compacted, slippery nature of the snow as well as the history of injuries resulting from slips and falls in similar conditions at the mine and across the industry show that these injuries were reasonably likely to occur.

 

The Secretary argues that the violation was the result of Respondent’s high negligence and unwarrantable failure to comply with the safety standard.  The condition was obvious, existed for two days, posed a high degree of danger due to the area’s extensive foot traffic, and the operator should have known of the cited condition.  Prior to issuing Citation No. 6492348, the inspector issued other citations to Respondent alleging violations of 56.11016 and discussed the need to address snow removal, which gave Respondent notice that greater efforts were necessary to comply with section 56.11016.

 

I find that Respondent violated section 56.11016 because it failed to clear, sand, or salt a regularly traveled walkway.  Although Respondent argues that the area between the generator and the guard shack was not regularly traveled, the copious amount of footprints witnessed by the inspector suggest otherwise.  Although the generator was located in the area for only one day at that time, the walkway was still regularly used at the time of the inspection; fuel must be added to the generator.  In addition, the miners who created those footprints could have cleared the snow or sanded or salted the walkway, which means compliance with the standard did not occur as soon as practicable.

 

I find that the violation was not S&S because the cited condition was not reasonably likely to contribute to an injury.  A violation existed and the hazard of a serious injury resulting from a slip and fall was also present.  Based upon the testimony of the witnesses and the video evidence provided by Respondent, however, I find that there was no ice in the cited area and the snow was not reasonably likely to cause a slip and fall injury.  The snow appears to be insignificant, which coincides with the testimony of Blood and Inspector Sichemeller.  The snow also appears to be rather dry.  It had snowed about one inch on the night of January 11 and there was no additional snow fall before the citation was issued.  (Tr.II 173).  It is unlikely that this snow could cause an injury.  The plant is located in northern Minnesota where snow is commonplace and there was no showing that miners wear footwear that would be unsuitable for use in the snow.  Only miners would be in the cited area; visitors would enter the guard shack along one of the shoveled and salted walkways.  The Secretary did not establish that the conditions were reasonably likely to cause someone to slip.

 

I also find that the violation was the result of Respondent’s low negligence, rather than high negligence.  The violation was not extensive because every other regularly traveled walkway around the guard shack was cleared and sanded or salted.  Only a small area between the generator and guard shack remained uncleared.  The inspector, furthermore, based his negligence and unwarrantable failure designations upon the fact that the operator knew of the violation based upon his conversation with management.  Based upon the testimony, however, it is clear that management and Inspector Sichmeller had a significant misunderstanding and Respondent was not aware that the condition the inspector wanted addressed was behind the guard shack.  As a result of the inspector’s conversation with management, furthermore, Blood testified that he took fast and direct efforts to abate what he believed was the condition of concern.  These efforts suggest a sincere desire and effort to correct the condition, but the snow remained on the travelway due to a misunderstanding.  The main entrances to the guard shack had been cleared of ice and snow as well as a path to the parking area.  The condition was not obvious unless someone went behind the guard shack because the snow was not deep.

 

Citation No. 6556570 is hereby MODIFIED to a non-S&S violation resulting from Respondent’s low negligence without an unwarrantable failure.  A penalty of $300.00 is appropriate for this violation.

 

III.  SETTLED CITATIONS

 

            The parties settled a number of the citations in these dockets at the hearing.  In LAKE 2011-482-M, the parties agreed to settle 17 of the 19 citations in the docket with the following terms:  

 

Citation	Proposed Penalty	Settled Penalty	Terms of Settlement
6556814	$4,689.00	$2,106.00	Low Negligence
6556511	$4,329.00	$3,000.00	Low Negligence
6556512	$460.00	$460.00
6556513	$2,106.00	$946.00	Low Negligence
6556518	$3,405.00	$687.00	Non-S&S
6556820	$3,689.00	$1,111.00	Lost Workdays/Restricted Duty
6556528	$745.00	$530.00	Non-S&S
6556529	$334.00	$334.00
6556532	$1,412.00	$1,412.00
6556533	$425.00	$425.00
6556534	$263.00	$263.00
6556831	$1,304.00	$1,000.00
6556832	$2,901.00	$2,200.00
6556833	$1,304.00	$1,304.00
6556540	$745.00	$300.00	Low Negligence
6556546	$946.00	$946.00
6556837	$1,304.00	$264.00	Non-S&S

           

In LAKE 2011-664-M, the parties agreed to settle 17 of the 23 citations in the docket with the following terms:

 

Citation	Proposed Penalty	Settled Penalty	Terms of Settlement
6556566	$499.00	$499.00
6556897	$263.00	$175.00	Lost Workdays/Restricted Duty
6556573	$1,304.00	$1,100.00	Non-S&S
6556900	$263.00	$175.00	Lost Workdays/Restricted Duty
6556576	$2,282.00	$2,282.00
6556577	$2,901.00	$585.00	Non-S&S
6556902	$263.00	$175.00	Lost Workdays/Restricted Duty
6556583	$190.00	$0.00	Vacate
6556584	$190.00	$175.00
6556585	$334.00	$334.00
6556586	$1,304.00	$1,304.00
6556587	$585.00	$0.00	Vacate
6556588	$1,304.00	$1,250.00
6556907	$585.00	$585.00
6556910	$460.00	$0.00	Vacate
6556912	$687.00	$687.00
6556913	$263.00	$175.00	Lost Workdays/Restricted Duty

 

            The proposed penalty amount for LAKE 2011-482-M is $17,288.00 and the proposed penalty amount for LAKE 2011-664-M is $ 9,501.00.  I have considered the representations and documentation submitted and I conclude that the proposed partial settlement is appropriate under the criteria set forth in Section 110(i) of the Act.  The parties’ motion to approve these settlements is GRANTED.

 

IV.  APPROPRIATE CIVIL PENALTIES

 

            Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty.  I have considered the Assessed Violation History Reports, which were submitted by the Secretary with her brief.  At all pertinent times, Northshore was a large mine operator.  The violations were abated in good faith.  The penalties assessed in this decision will not have an adverse effect upon Northshore’s ability to continue in business.  The gravity and negligence findings are set forth above. 

 

V.  ORDER

 

            Based upon the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the following civil penalties:

 

            Citation No.                                        30 C.F.R. §                             Penalty

 

LAKE 2010-756-M

 

            6492348                                              56.11016                            $   300.00     

           

LAKE 2011-482-M

           

            6556545                                              56.12004                                 300.00                                                                 

            6556827                                              56.11001                         VACATED

 

  LAKE 2011-664-M

 

            6556561                                              56.11001                         VACATED

            6556570                                              56.12004                                 200.00            

            6556571                                              56.12017                                 500.00

            6556572                                              56.12017                                 500.00

            6556582                                              56.14112(b)                             800.00

            6556888                                              56.14132(b)(1)(i)                  2,000.00

 

     

                                    SUBTOTAL                                                            4,600.00

                                    SETTLED CITATIONS                                       26,789.00

                                    TOTAL PENALTY                                             $31,389.00

 

 

            Northshore Mining Company is ORDERED TO PAY the Secretary of Labor the sum of $31,389.00 within 30 days of the date of this decision.^[3]  Docket No. LAKE 2010-361-RM is hereby DISMISSED.

 

 

 

 

 

                                                                        /s/ Richard W. Manning  

                                                                        Richard W. Manning

                                                                        Administrative Law Judge

 

Distribution:

 

Karen E. Bobela, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite 515, Denver, CO 80204 (Certified Mail)

 

Patrick W. Dennison, Esq., Jackson Kelly, Three Gateway Center, 401 Liberty Ave., Suite 1340, Pittsburgh, PA 15222 (Certified Mail)

RWM/bjr