US Borax, Inc.

Plain-English summary

US Borax faced nine citations at its large California boron operation, with seven resolved by settlement for $21,675. Judge Margaret A. Miller upheld a citation for a missing insulating cover over energized timer connections but removed the S&S designation because the locked room and timer were accessed too infrequently to prove likely contact, assessing $16,000 based on high negligence and serious potential harm. She separately affirmed an S&S guarding citation for exposed elevator-hoist moving parts that started without warning near work and cleaning areas, assessing $10,000. The combined settlement and litigated penalties totaled $47,675.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12032 and 56.14107(a)
• Outcome: Seven citations were settled, the timer-cover citation was modified to non-S&S, and the hoist guarding citation was affirmed as S&S, for total penalties of $47,675.
• Key point: Limited exposure can defeat an S&S finding even when the possible injury is severe, while regular work near obvious unguarded moving parts supports S&S and high negligence.

Full text (FMSHRC public release)

ORDER GRANTING SECRETARY OF LABOR’S MOTION TO FILE LATE PETITION FOR THE ASSESSMENT OF CIV

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5267/FAX 303-844-5268

September 21, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner, 

v.

US BORAX, INC., 

Respondent. 

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CIVIL PENALTY PROCEEDING

Docket No. WEST 2011-1481-M

A.C. No. 04-00743-263532 02

Mine: Boron Operations

DECISION

Appearances:  Letha Miller, Office of the Solicitor, U.S. Department of Labor, Denver,Colorado for Petitioner,

Dana Svendsen, Jackson Kelly PLLC, Denver, Colorado for the Respondent.

Before:                                    Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”),
against US Borax, Inc. (“Borax”), pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The above captioned
docket involves nine citations issued by MSHA under section 104(a) of the Mine Act at the
Boron Operations (the “mine” or “Boron Operations”) located in Boron, California. The parties
presented testimony and documentary evidence at a hearing held on August 2, 2012, in Long
Beach, California. At the hearing, the parties agreed that seven of the nine violations had been
settled. Two citations are left for decision.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Boron Operations Mine is located in Boron, California and is owned and operated by
US Borax, Inc., which is in turn owned by Rio Tinto Minerals. (Tr.19). US Borax extracts a
boron material from a pit that is a mile deep and several miles long. (Tr. 19-20). The mine
employs approximately 800 individuals and has a very large processing operation. (Tr. 96).

The parties agree that the mine is subject to the jurisdiction of the Mine Act, that the
Respondent is an operator as defined by the Act and that the Administrative Law Judge has
jurisdiction in this matter. Jt. Ex. 1.

Inspector Chad Hilde has been with MSHA since January, 2001. (Tr.16). Hilde received
the requisite training at the mine academy and has also received training as an accident
investigator. He had twenty years of mining experience prior to joining MSHA, primarily in
sand and gravel operations. (Tr. 17). On April 4, 2011, Hilde was at the mine with a number of
other inspectors and issued the two citations addressed below.

a.         Citation No. 8560992

On April 4, 2011, Inspector Chad Hilde issued Citation No. 8560992 to Borax for a
violation of Section 56.12032 of the Secretary’s regulation. The cited standard requires that
“[i]nspection and cover plates on electrical equipment and junction boxes shall be kept in place
at all times except during testing or repairs.” 30 C.F.R. § 56.12032. The citation alleges that
“[t]he cover plate was missing over the 110 V, energized connection screws. The energized
metal was approximately two inches below the timer clock face, exposing miners to electric
shock or burn. he light timer for the acid pit was located in the plant 9 elevator hoist room.”
Hilde determined that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that one employee was affected, and that the negligence was high. A
civil penalty in the amount of $18,271.00 has been proposed for this violation.

i.         Brief Summary of Testimony

During the course of the April 4th inspection, Hilde traveled to the elevator hoist room in
the 10-mol building at the mine.

Hilde was accompanied by Charles James, a safety and health
advisor for the mine, and Ed Saxton, the supervisor of the area. (Tr.70). The elevator hoist room
is reached by taking the freight elevator to the fourth floor of the building and then climbing a
spiral staircase to the room above. (Tr.71,111). Little else is located on that particular floor of the
building. (Tr.158). Hilde testified that, while traveling to the room, the group passed an
electrician while going up the stairs, and learned from him that he had been in the room
conducting electrical tests. (Tr. 29,70). Among other things, the hoist room contains two wall-mounted clock timers used to set the on and off operating times for discrete outside lights. (Tr.
23,118). While in the hoist room, Hilde opened one of the one clock timers and observed that the
cover plate was missing over the energized connection screws on one of the light timers. (Tr.
22-24). The condition was immediately obvious.

Inspector Hilde took three photographs of the timer switch. Sec’y Ex. 3. Hilde testified
that the photographs show the five screw lugs just below the yellow timer dial, four of which are
energized with 120 volts, and the fifth of which serves as the ground wire. (Tr. 29). The
energized components are directly below the clock face, approximately two inches away from
the area where the timer is adjusted by hand. Sec’y Ex. 3; (Tr. 25, 27, 31). The timer was
energized at the time of the citation. (Tr. 31). Hilde explained that the two hex bolts seen on the
face of the timer are manually tightened or loosened to set the start and stop time. (Tr. 27). The
time, however, is set by pulling out the yellow dial and turning it. (Tr. 31). The door to the clock
time box is not locked and, accordingly, is easily opened. (Tr. 27). Hilde testified that the switch
used to turn off the clock is located just below the yellow dial, nearer to the energized parts. (Tr.
23, 31). There was no testing taking place when Hilde observed the violation.

Hilde explained that it was reasonably likely that someone would contact the energized
part of the clock timer and suffer a shock or electrocution as a result. (Tr. 29-32). Each lug
contained 120 volts and contact with one would result in anything from a minor shock to a
fatality. (Tr. 29-30, 32, 38). At hearing, Hilde noted that, if the floor were wet after being
cleaned or washed down, the shock would more readily travel through the body to the floor since
the moisture would act as a conductor. (Tr. 30). Hilde testified to the many injuries in the
mining industry due to contact with energized parts and the fact that these types of injuries occur
not only to miners, but also to electricians. (Tr. 32-39).

Hilde testified that he was told by the operator that only electricians would access the
box, which led him to understand that it was an electrician who left the cover plate off of the
energized portion of the box. (Tr. 73). He explained that the condition was obvious once the box
cover was open and an electrician should know that the insulated cover was missing. Further, the
electricians should have conducted an area exam during the shift.

The witnesses for the mine agree that there was no cover over the energized area, and
that anyone working inside the box would be exposed to 120 volts. James testified that, on the
day of the inspection, the door to the hoist room at the top of the staircase was locked when the
group arrived, so he asked Saxton to retrieve the key. (Tr. 159-160). Saxton, in turn, called the
electrician assigned to the area and instructed him to bring the key. (Tr. 89). The same electrician
returned with the key, after retrieving it from the operations manager below. (Tr. 70). Saxton
testified that there was little in the room, and James described the room as dry, with some
material on the floor, but no debris. (Tr. 160). James explained that, as one enters the room, the
cited timer, along with a second timer, were to the left of the door, in the corner. (Tr. 160-161).
James observed the missing cover as soon as the inspector opened the door of the timer.
(Tr. 172-173). He testified that he immediately knew what the inspector was looking for and
what the problem was. (Tr. 172-173).

Ribald, an electrical engineer in charge of all electricians at the mine, testified that he
was aware that the insulated covers were missing on a number of the clock timers located around
the mine. The electrical shop had been trying to identify and replace the missing covers on
various timers. (Tr. 124, 162). Ribald explained that the covers supplied by the manufacturer
became brittle after a time and were difficult to keep on the timer. (Tr. 123). For that reason, the
mine had made its own covers, as well as ordered some replacement covers from the
manufacturer, and was in the process of inspecting the timers and installing missing covers
throughout the mine. (Tr. 125). According to Ribald, this particular hoist room must have been
missed. (Tr.124). Witnesses for the mine agreed that the clock timers are not often accessed.
(Tr. 120). Ribald testified that, because the timers were set at a standard time, he was not aware
of the electricians having to make any adjustments to the timers for a number of years. (Tr. 120).
Moreover, he doesn’t recall that the subject timer had been adjusted recently, as all of the timers
are low maintenance. (Tr. 120). Ribald agreed that the timers are turned off and on when the
lighting circuit requires repairs or troubleshooting. (Tr. 121). Notably, none of the mine’s
witnesses were able to establish how often repair or troubleshooting are required, but all
witnesses agreed that it was infrequent.

Ribald, like Saxton and James who accompanied the inspector, had never been into the
hoist room prior to the inspection conducted by Hilde. (Tr. 87, 157). They all agreed that the
area was not accessed by working miners, but was the realm of electricians and Otis Elevator
personnel. (Tr.87-88, 113). The mine’s electricians inspected the fire extinguishers each month,
did routine maintenance and testing, and cleaned or swept the room as needed. (Tr. 88, 157-158).
Ribald explained that, as the overall supervisor, he believes the electricians at the mine are well
trained and use personal protective equipment, including leather gloves, when carrying out
electrical work on boxes such as the one that contained the clock timer. (Tr. 104-111).

ii.        The Violation

The mine does not dispute that the violation occurred as alleged by Hilde. James
explained that, although he not an electrician, he knew what Hilde would be looking for when he
opened the box to look at the timer and he knew that there was a violation. Ribald and James
agreed that the insulated cover for the energized portion of the clock timer was missing, and not
anywhere to be found in the room. There was no evidence of testing or repairs being performed
on the clock timer. Accordingly, I conclude that the operator violated the standard as alleged
and that the Secretary has established the fact of violation.

iii.       Significant and Substantial Violation

A violation is classified as S&S “if based upon the 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.” National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission set out a four-part test for analyzing
the issue of significant and substantial. The Secretary must establish: (1) the underlying violation
of the safety standard; (2) a discrete safety hazard, i.e., 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. Evaluation of the criteria is made assuming “continued normal mining operations.” U.
S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a violation is
S&S must be based on the particular facts surrounding the violation viewed in the context of
continued mining operation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); U.S. Steel Mining
Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The Secretary is not required to show that it is more
probable than not that an injury will result from the violation. U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).

I have already concluded that a violation occurred. Moreover, there can be little doubt that
by leaving the insulating cover off of the switches at the bottom of the timer, there was a
measure of danger to safety, i.e., the possibility of electrocution. Nor can there be any question
that electrocution is an injury of a reasonably serious nature. However, as is frequently the case,
the question of whether or not this citation is S&S turns on the third element of the Mathies test.

Hilde testified that, even though the door to the hoist room was locked, in his experience,
miners access out of the way areas like this more than expected because these areas serve as a
place to escape from the other activities at the mine and “hide out.” (Tr. 61). He explained that
the key is given to anyone who asks for it, including personnel who may be conducting
maintenance, housekeeping, electrician, or contract work. (Tr.40). An electrician had just been in
the room when Hilde arrived. (Tr.40). The room was regularly, albeit infrequently, accessed.
Once the door to the timer is opened, the exposed energized parts are within inches of the areas
that the electrician will touch. In Hilde’s view, it is inevitable that someone will inadvertently
contact the exposed lugs. Hilde explained that there have been many injuries in the mining
industry that have involved touching exposed wires, including injuries to electricians. See Sec’y
Exs. 7-23. Hilde didn’t know how long the condition had existed, but there was substantial dust
inside the box and on the energized lugs, which indicated to him that the conditions had existed
for a “considerable amount of time.”

The mine disputes the finding of S&S for a number of reasons. First, the room is locked
with a padlock and the person, or persons, entering the room must retrieve the key from the
operations supervisor. (Tr. 90, 111-112). Second, only electricians and elevator maintenance or
repair persons would have reason to enter the room. (Tr. 87-88). Third, the room is only
occasionally cleaned and accessed. The room contains equipment that requires maintenance as
well as testing, including fire extinguishers that must be examined each month. (Tr. 131). Yet,
according to the mine, all work is done infrequently and the clock timers are accessed even less
frequently. Fourth, according to the mine’s witnesses, the miners are well trained and use the
required equipment at all times. (Tr. 117-118, 146). The mine argues that when the electrician is
servicing or maintaining the clock timer, he uses gloves and, if he came in contact with the
energized parts, he would not be injured. However, I note, just as Hilde did, as with any personal
protective equipment, such as gloves, there is no guarantee they will be used during an
adjustment of the small components on the timer. (Tr. 76-77).

While there is substantial evidence to show that persons enter the room and conduct certain
activities in the room, there is little evidence that those persons access the clock timer. Instead,
as Ribald explained, the timers are not changed routinely. Once the timers are set, there is no
need to access them unless it is for troubleshooting. Therefore, while I find that the Secretary has
established that work is done in the area on a regular basis, I cannot find that the box on the
timer is opened frequently enough on a regular basis to justify the level of exposure necessary to
sustain a S&S finding. Given the limited exposure, I find that the violation is not significant and
substantial.

Finally, 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). At some point, someone will access the box and touch the timer or its parts
without gloves, resulting in a serious injury. For that reason, I assess a higher penalty.

iv.        Negligence

Hilde designated this violation as being the result of high negligence and testified that
this operator has been cited for violations of this standard ten times in the past two years, two
citations of which were issued the week prior to this citation, and eight citations of which were
issued during the prior six inspections. (Tr. 42, 80). The mine asserts that only electricians open
the door to the timer box. In Hilde’s view, an electrician should replace the insulated cover if he
removes it and would know if one were missing. (Tr. 41). Therefore, Hilde reasoned, the
negligence was high. In addition, the sign on the door to the timer box reminds operators to
replace the plastic cover before energizing the equipment. (Tr. 43). Further, the cover, which is
included on the unit by the manufacturer, also instructs the user to “not remove the insulator.”
(Tr. 43-44). Finally, Hilde issued a second citation for a missing insulated cover on a clock timer
during this same inspection.

Ribald explained that, six months prior to this issuance of this citation, the mine was
aware that a number of timers were missing the insulated covers and had tried to identify those
in order to repair them. The mine argues that it had been highly proactive in trying to identify
and eliminate conditions similar to that which was cited and that the electricians were instructed
to replace the insulated covers on the timers.

MSHA defines negligence as conduct that, either by commission or omission, falls below
a standard of care established under the Mine Act to protect miners against the risks of care.
Section 100.3(d) states that “[u]nder the Mine Act, an operator is held to a high standard of care.
A miner 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.” 30 C.F.R. § 100.3.(d). I find that the mine was certainly on notice of
the need to make greater efforts to correct this type of violation. Still, this particular timer was
not repaired and, based on the dust, had remained in the condition observed by Hilde for some
period of time. Given that the mine was aware of the many missing insulated covers, yet failed to
take action to correct the one at issue, I agree with the inspector that the negligence was high.

b.   Citation No. 8560993

Also on April 4, 2011, Inspector Hilde issued Citation No. 8560993 to Borax for a violation
of Section 56.14107(a) of the Secretary’s regulations. The cited standard requires that
“[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.” 30 C.F.R. § 56.14107(a). The citation alleges the
following:

There were two side opening fourteen inches in diameter exposing
the moving brake drum. There was six inches of exposed,
approximately four inch shaft and coupler at the brake drum.
There was a thirty inch diameter opening exposing the hoist
sheave. Moving machine parts present an entanglement hazard.
The exposed moving parts were located at the plant 9 elevator
hoist room at the top of the plant 9 screen house.

Hilde determined that a permanently disabling injury was reasonably likely to occur, that the
violation was significant and substantial, that one employee was affected, and that the negligence
was high. A civil penalty in the amount of $9,634.00 has been proposed for this violation.

i.         Brief Summary of Testimony

At the same time and in the same hoist room discussed in the first citation, Hilde issued a
second citation for failure to have guards in specific areas on the elevator hoist motor. (Tr. 47).
The elevator hoist motor, shown in the photograph, Sec’y Ex. 29, is located on the floor in the
hoist room. The motor stops and starts without warning when the elevator is called, and,
according to Hilde, did so while Hilde was present. (Tr. 51-52, 55). The photograph clearly
shows the three areas with exposed moving parts that Hilde cited, i.e., the hoist drum and the
shaft. (Tr. 52-53). First, the hoist drum was not completely guarded on either side

and, in
Hilde’s view, created an entanglement hazard. The elevator ropes ride on the spoked portion as
it turns at a moderate speed. (Tr. 55). Second, the entire shaft, seen in Sec’y Ex. 29 p. 2, moves
at a faster speed as the elevator moves up and down. (Tr. 55). Hilde testified that, in each case,
parts on the motor were not covered or protected, thereby creating an entanglement hazard. (Tr.
54, 56). According to Hilde, entanglement would lead to crushing injuries, amputation or broken
bones. (Tr. 56). Hilde testified that the motor’s moving parts were exposed and obvious as he
entered the room. Hilde could not understand how this motor, sitting in the open with its moving
parts plainly obvious, was missed and not guarded. (Tr. 66).

Hilde testified that the floor around the machine was covered in a fine powdery material
that would be easy to slip on when dry, and even easier when wet. (Tr. 60). In addition, he
observed conduit on the floor that created a tripping hazard. (Tr. 60). Hilde testified that the shut
off switch was in the back of the room and would be difficult to access if one became entangled
in the moving parts of the motor. (Tr. 61).

Hilde again explained, as mentioned above, that an electrician had been in the room
doing a ground test just before Hilde arrived. (Tr. 57). According to Hilde, cleaning and
inspections are regularly done in the room. While two miners are often in the room to clean or
conduct maintenance, a sole miner may also work in the room. In addition, Otis Elevator
employees access the room to conduct maintenance and repairs of the elevator system. (Tr. 62).

The witnesses for the mine testified, as described above, that the room was at the top of
the building, that only electricians and the elevator maintenance company personnel had reason
to enter the room, and that the room required a key to access and otherwise remained locked.
(Tr. 93-94). The mine’s witnesses explained that electricians are trained to look for guarding
violations, as are all employees, but this guard did not show up on a work area inspection, so
James was not aware of the hazards in the area. (Tr.165-166). James did not address why it was
not inspected and noted. Ribald explained that generally an electrician, along with an
apprentice, is present in the motor control center during the sweeping and cleaning of the area.
(Tr. 113). James agreed that Otis Elevator personnel are on site once each month. Notably,
none of the mine’s witnesses, whose testimony consisted primarily of leading questions,
explained how often persons accessed the room. As a result, I find Hilde’s testimony regarding
access to the room to be undisputed in many regards.

ii.        The Violation

The mine does not dispute that the violation occurred as alleged by Hilde. The two
witnesses who accompanied Hilde agreed that they observed the motor, unguarded, as soon as
they entered the room. They had no explanation for why the motor was not guarded, and did not
dispute that it was a hazard and a violation. The moving parts were obvious and easily accessed
by anyone working in the room. Since the motor started without warning, a person working or
cleaning near the motor would be taken by surprise and easily entangled in the motor. Therefore,
I conclude that the operator violated the standard as alleged.

iii.       Significant and Substantial Violation

The Commission has long held that a S&S designation must be based on the particular
facts surrounding the violation, and viewed in the context of continued mining operation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985). I have found that a violation exists and that the hazard associated with the
violation is one of entanglement in moving machine parts. The entanglement will undoubtedly
lead to a very serious injury, given the fact the shut off for the motor is not easily accessible to
anyone caught in the moving part. Miners, and in particular electricians, are often in the room
alone. The question of whether or not this citation is S&S turns on the third element of the
Mathies test.

In discussing the injuries related to guarding in Thompson Bros. Coal Co., 6 FMSHRC
2094, 2097 (Sept. 1984), the Commission stated:

We find that the most logical construction of the standard is that it
imports the concepts of reasonable possibility of contact and
injury, including contact stemming from inadvertent stumbling or
falling, momentary inattention, or ordinary human carelessness. In
related contexts, we have emphasized that the constructions of
mandatory safety standards involving miners= behavior cannot
ignore the vagaries of human conduct. See, e.g., Great Western
Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star Industries,
Inc., 3 FMSHRC 2526, 2531 (November 1981).

As discussed above, I find that there is ample access to this elevator hoist room. While
the mine disputes that any work was being done in the room on the day of the inspection, the
electrician was not called to testify. Instead, the other witnesses pointed out that electrical
testing was being done on the lower levels of the building that day. There is no testimony to
directly dispute Hilde’s recollection that the electrician had just left the room after conducting
electrical tests. Obviously work needs to be done in the room on a regular basis. Given that the
motor is on the floor, that miners work around the motor, that there were tripping hazards, and
considering the “vagaries of human conduct,” I find that an injury is reasonably likely to occur
as a direct result of this violation.

Hilde believes that, if left unabated, it is reasonably likely that a miner would come into
contact with the moving parts and become entangled, which in turn would result in an injury that
is permanently disabling. (Tr.57). Hilde has conducted accident investigations for MSHA and is
aware of accidents that regularly occur in the industry that involve moving machine parts.
(Tr.57). He has investigated amputations as a result of contact with unguarded parts. (Tr. 57).
The fatalgrams offered into evidence, Sec’y Exs. 35 and 36, are examples of injuries that have
occurred as a result of a miner becoming entangled in moving parts. (Tr. 58-59).

The Commission and courts have held that an experienced MSHA inspector’s opinion
that a violation is significant and substantial is entitled to substantial weight. Harland
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal Inc. v.
MSHA, 52 F.3d 133, 135 (7th Cir. 1999). Hilde is an experienced mine inspector, who testified
with regard to each element of the Mathies formula for S&S. I credit his testimony, more so
than the testimony of the mine’s witnesses, as to the gravity of this violation. I have found that
the cited standard was violated, that the absence of the guard presented a discrete safety hazard
contributed to by the violation, that the hazard in fact would contribute to the resulting injury,
and that the injury would be of a serious nature. Accordingly, I find that the violation is S&S.

iv.        Negligence

Given the testimony outlined above, I find that the Respondent was aware of the hazard,
understood that work was performed around the hoist motor, and knew that the motor was
unguarded. See Mainline Rock & Ballast, 33 FMSHRC 307 (Jan. 2011) (ALJ). The witnesses
for the operator agreed that the company trains all miners to look for guarding violations. Yet,
even with the moving parts on the motor open and obvious to anyone who walks in the room,
nothing was done to guard the motor. I am not persuaded by the mine’s argument that the room
is not often used and, therefore, the need for a guard went unnoticed. Given all of the
circumstances, I find that the violation was the result of high negligence.

v.          Settled Citations

The Respondent and the Secretary have agreed to the following settlement amounts and
modifications for the remaining citations in this docket.

Citation/Order
No.

Originally
Proposed
Penalty

Settlement
Amount

Modifications

8607030

$7,578.00

$4,600.00

No Changes

8607031

$5,080.00

$3,800.00

Modified to Moderate Negligence.

8607032

$7,578.00

$5,500.00

Modified to Moderate Negligence

8560990

$5,961.00

$4,200.00

Modified to Moderate Negligence

8560991

$2,282.00

$1,700.00

Modified to Moderate Negligence

8607207

$2,678.00

$1,875.00

Modified to non-S&S and Unlikely.

8567737

$2,678.00

$0

Vacated.

TOTAL

$21,675.00

I accept the representations and modifications set forth both at hearing, and in the Motion
to Approve Settlement and Order Payment. I have considered the representations and
documentation submitted. I find that the modifications are reasonable and conclude that that the
proposed settlement is appropriate under the criteria set forth in Section 110(i) of the Act. The
Motion to Approve Settlement is GRANTED.

II. PENALTY

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

[1] the operator’s history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator’s ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.

30 U.S.C. § 820(i).

I have found that the Secretary has established a violation as alleged in each of the
citations herein. US Borax is a large operator. The mine terminated the violations in good faith,
the penalties as proposed will not affect its ability to continue in business, and the history of
assessed violations is a part of the record as Sec’y Ex. 34. I have discussed the gravity and
negligence above for each citation. Based upon the record as a whole, and considering the six
statutory criteria, I assess a penalty of $16,000.00 for Citation No.8560992 and $10,000.00 for
Citation No. 8560993.

III. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. ' 820(i), I assess a total
penalty of $26,000.00 for the two citations addressed in this decision. Consistent with my above
findings regarding the settled citations and those citations that were contested at hearing, the
S&S designation for Citation No. 8560992 is removed, the violation is deemed to be non-S&S,
and U.S. Borax Inc. is hereby ORDERED to pay the Secretary of Labor the sum of $47,675.00
within 30 days of the date of this decision.

/s/ Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:

Letha A. Miller, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202-5708

Dana M Svendsen, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202