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Penalties Cut Where Contractor Was Responsible for Housekeeping


By Ellen Smith

ALJ David Barbour upheld eight citations issued against Northshore Mining Co.’s mine in Silver Bay, Minn., and vacated one guarding citation for lack of fair notice. The Secretary and company settled 25 additional violations stemming from multiple inspections that occurred between January 2013 and August 2013 for fines totaling $27,626, down from MSHA’s $79,023 in proposed penalties.

 

Three violations of the housekeeping standard §56.20003(b) were upheld as S&S, but with low negligence on the part of Northshore, since the mining company’s employees were not working in the areas. There were contractor employees in the areas, and it was their job under the contract to keep the areas maintained.

Two fines of $586 each were imposed for two housekeeping violations. The fines were proposed at $1,304 each. In one case, MSHA found “loose mud-like” fines material and standing water along a side of a conveyor belt, and there were footprints in the mud. In the second case, there was “slick oil, water, and grease up to 1/2-in. deep across the walkway of the concentrator sub-basement area, with footprints and cart tracks in the area. Workboots would not prevent a slip or fall on this surface.

A third fine was lowered from $3,405 to $1,400 for and S&S violation where MSHA found a mix of pellets and standing water along walkways of the pellet plant. In addition, guards, planks and a hose were submerged in 2 ft. of water. The inspector witnessed a miner slipping in this area, which justified the S&S finding.

Upholding Findings

While upholding the S&S findings on all three violations, Northshore was minimally negligent, despite a significant history of housekeeping violations over the prior 15-month period. In the case on one of the citations, no work was being done in the area. In the case of the other two, the contractor assumed some responsibility. While the Secretary argued that Northshore should have provided further training or instruction to its contractors, there was no evidence that MSHA cited Northshore for inadequate training of its contractors.

A fourth violation of §56.20003(a) and MSHA’s fine of $392 was upheld where MSHA found pellets on an inclined walkway on each side of a conveyor belt. The company argued the area was not a “workplace” or a  “passageway” under the standard.

Judge Barbour agreed that it was not a “workplace,” but disagreed on the issue of it being a “passageway.” While the area may not have been used regularly, or designated for persons to go from one place to another, the cited area does allow passage or a path by which miners may pass, making it a passageway that needed to be kept clean and orderly.

A violation of §56.11001 was upheld, but was not S&S where there were large icicles hanging in front of doors of a pump house. The area was not frequently accessed. Miners wore hardhats, and winter coats that icicles would be unable to pierce if the icicles fell. Negligence was low given the remoteness of the pump house, and the lack of any need to visit it that day. MSHA’s proposed fine of $8,209 was reduced to $250.

An icy walkway led to a $300 fine, lowered from MSHA’s proposed fine of $2,473 for failing to sand or salt the walkway in front of the pump house in violation of §56.11016. While the company failed to clear the snow that later became ice, Judge Barbour said he was not convinced that the area was slippery or the ice extensive enough to injure someone since the area was infrequently accessed. It was also noted that frequently used areas were salted and sanded, which slightly mitigated the company’s negligence.

Two electrical box violations under §56.12032 were upheld where MSHA found the cover plate door on both boxes rusted through due to splashing water.

A fine of $11,306 was assessed where the cover door was also ajar in addition to the holes, exposing live, energized 120-volt wiring. It was high negligence since the violation was obvious, and the inspector had written the same citation, for the same box, under the same condition, two years before this citation, and the company did not appear to have done anything to address the problem. The second cover was also corroded through, and MSHA’s fine of $4,689 was upheld. Negligence was “moderate” in this instance because the company did not have an opportunity to identify the violation during the plant’s two-week summer outage.

A fine of $4,689 was upheld in the second case where the wires were not energized. The last citation contested, an alleged violation of the guarding standard under §56.14107(a) was vacated under the “fair notice” doctrine.

Head Pulley

The MSHA inspector claimed that an area of the head pulley needed to be better guarded, but the company noted that it was “guarded by location,” because the exposed moving part was 7-ft. high. MSHA did not measure the distance.

The company also noted that the cited area of the head pulley had been in the partially guarded stated since the structure’s creation in 1956, and had never been cited by MSHA.

The inconsistency of the Secretary’s prior enforcement at this mine is serious enough to outweigh all other notice considerations in a ‘reasonably prudent person’ test,” Judge Barbour said. The “long history of non-enforcement from MSHA amounts to a grossly inconsistent enforcement practice, just as North Shore contends,” the judge said, in vacating the citation for lack of notice.

NORTHSHORE MINING CO., 2/26/2015, FMSHRC(J) LAKE 2013-458-M


Main Addresses NSSGA Convention

Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health, on March 16 addressed the National Sand, Stone and Gravel Association’s 2015 Convention in Baltimore.

Main said that MSHA, the mining industry and others have made many improvements, particularly in the past five years, that are laying the foundation for better protections for miners.

He noted that MSHA’s extensive outreach to and communications with stakeholders, including NSSGA, has contributed to these efforts and assisted the industry in reaching the lowest fatal and injury rates in metal and nonmetal mining history in 2011, 2012 and 2013. 

“However, the recent increases in deaths at metal and nonmetal mines are overshadowing those improvements,” Main said. “In 2014, 42 miners died in mining accidents. Sixteen occurred at coal mines, the lowest number ever recorded. Twenty-six were at metal and nonmetal mines, an increase from last year and part of a disturbing trend of 38 fatalities that began in October 2013.  Fourteen of these deaths were at aggregate mines.”

Main said that MSHA is stepping up enforcement, looking hard at conditions that caused these 38 fatalities, and “we are asking the industry to do the same. We are continuing our outreach and education, including ‘walk and talks’ with miners and operators and sharing information with the industry on the deaths and the best practices to prevent them. During the first week in February, as the NSSGA joined us at stakeholder meetings, we were increasing these efforts.”

Main spoke about a new online tool to assist operators, miners, MSHA and others to monitor every mine’s violations of the “Rules to Live By” standards that are frequently cited following mining deaths.

“MSHA intends, and operators should, use this new tool, which lists all Rules to Live By standards cited during the last MSHA inspection and automatically highlights if a mine’s violation rate is above the national average, to reduce metal and nonmetal deaths,” Main said. “The ‘Rules to Live By’ standards were cited in about half of the 29 investigations on the fatalities that we have completed so far.

“During the past five years, we have worked hard at MSHA to retool mine safety and health,” Main said. “Since I arrived at the agency, engagement with and outreach to the mining community has been central to my approach for improving stakeholder communications and participation, providing better industry compliance guidance and consistency in our enforcement – and above all – to make mines safer for miners.”

Main said that he, along with top MSHA staff, regularly travel the country meeting with industry stakeholders and visiting mines to discuss mine safety and health and see the results of mine safety work first-hand. “I want to thank the NSSGA for being an active participant in many of these events that have led to positive chang,” he said.

“Last fall, Metal and NonMetal Administrator Neal Merrifield and I met with industry stakeholders from eight states in Kansas City, Mo.,” Main said. “Over the years, I have attended about a half-dozen such meetings in the Mid-West. We toured the Stamper Underground Mine, a limestone operation owned by Martin Marietta with 27 miners. This mine has not had any lost time accidents since 2009. The mine credits training and employee engagement for its success. While we were at the mine, I noticed a plaque in the break room with the Company’s “Guardian Angel Creed,” which gives miners the right to stop operations if conditions become dangerous. This is a motto many mining operations adopt and others should as well.

“As a result of these ongoing stakeholder engagements, MSHA issued guidance to clarify a number of existing standards. The clarifications have improved consistency in enforcement and furthered mine safety and health. In 2010, MSHA issued new guidance on the guarding standards, which were the most cited by MSHA at metal non and metal mines. The NSSGA made it possible for MSHA personnel to observe, photograph and videotape guards of all sorts and constructions at mines in the development of the highly successful guidance. The guidance was piloted with stakeholders before implementation,” Main said.