BHP Copper, Inc.

Plain-English summary

BHP Copper, Inc. contested Citation No. 7922328 at the San Manuel Mine for a violation of the Mine Act's inspection-access provision. The Commission had already found a violation and remanded the case for assessment of a penalty. Judge Richard W. Manning considered the penalty criteria, including the mine's violation history, size, negligence, gravity, business impact, and abatement. He affirmed the citation and assessed a $60 penalty, payable within 40 days.

Decision snapshot

• Cited provisions: 30 U.S.C. § 813(a), 30 U.S.C. § 820(i), and 30 C.F.R. § 100.5
• Outcome: Citation No. 7922328 was affirmed and a $60 penalty was assessed on remand.
• Key point: After the Commission establishes a Mine Act violation, the ALJ on remand assesses the penalty using the statutory criteria.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                     August 25, 1999

BHP COPPER, INC., : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 98-189-RM
v. : Citation No. 7922328; 3/13/98
:
SECRETARY OF LABOR, : San Manuel Mine
MINE SAFETY AND HEALTH : ID No. 02-00151
ADMINISTRATION (MSHA), :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 98-415-M
Petitioner : A.C. No. 02-00151-05646
:
v. : San Manuel Mine
:
BHP COPPER, INC., :
Respondent :

                    DECISION ON REMAND

Before: Judge Manning

 By decision dated June 23, 1998, I granted BHP Copper's

motion for summary decision in WEST 98-189-RM and vacated
Citation No. 7922328. 20 FMSHRC 634. The Commission, on its
own motion, directed review of my decision. On July 30, 1999,
the Commission reversed my decision and remanded that case to
me to impose an appropriate penalty. In its decision, the
Commission determined that BHP Copper violated section 103(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 813(a) (the "Act"), as alleged in the citation.

 I was assigned the civil penalty case that contains the

contested citation on October 23, 1998, Docket No. WEST
98-415-M. In that case, the Secretary proposed a penalty of
$60 for Citation No. 7922328. The civil penalty case
also contains Citation No. 7922329. On March 22, 1999, I
approved the parties' proposed settlement of Citation No.
7922329 in WEST 98-415-M. In the settlement, BHP Copper
agreed to pay a civil penalty of $29,000 for that citation
and to comply with the terms of an agreement executed by the
parties that was attached to the motion for approval of
settlement. Consequently, the only issue before me on remand
in these cases is the assessment of an appropriate civil
penalty for Citation No. 7922328.

 By order dated August 3, 1999, I consolidated the above

proceedings and stated that I would assess the $60 penalty
proposed by the Secretary unless BHP Copper provided reasons,
on or before August 20, 1999, why the penalty should be
different, taking into consideration the penalty criteria in
section 110(i) of the Act. BHP Copper responded to my order
by stating that its anticipates appealing the Commission's
ruling to the U.S. Court of Appeals and, to preserve its
right to appeal, it objects to the assessment of a penalty
for Citation No. 7922328.

 Under the Act, a penalty must be assessed  for any

violation of the Act or the Secretary's safety and health
standards. Consequently, I assess a penalty based on the
information contained in the citation and the Secretary's
petition for assessment of penalty filed with the Commission.
The Secretary specially assessed the citation under 30 C.F.R.
§ 100.5.

 1.  History of Previous Violations

 The Secretary's petition for penalty states that the San
 Manuel Mine was issued 158 citations during the 24 months
 preceding March 13, 1998, during 377 inspection days.

 2.  Size of the Mine Operator

 Both  BHP  Copper  and  the  San  Manuel Mine are large
 operations.

 3.  Negligence of the Mine Operator

 Inspector Richard Laufenberg determined that BHP Copper's
 negligence was high.

 4.  Effect of Penalty to Continue in Business

 The penalty proposed by the Secretary will not have any
 effect on BHP Copper's ability to continue in business.

 5.  Gravity of the Violation

 Inspector Laufenberg determined that the violation was not
 serious because there was no likelihood of an illness or
 injury as a result of the violation; the violation would 
 not be  expected  to  result  in  any lost  workdays; and 
 the violation was not of a significant and substantial 
 nature.

 6.  Good Faith Abatement

 The citation shows that BHP Copper abated the citation 
 by providing the address and phone number of Mr. Ronald 
 Byrd within 30 minutes after the citation  was issued.
 The Secretary's  narrative  findings  for  a special  
 assessment states that the violation was abated within a 
 reasonable period of time.

 7.  Assessment of an Appropriate Penalty

 In assessing a penalty, I take into consideration the
 information of record for the penalty criteria as set 
 forth above.  I find  that  the  Secretary's  proposed  
 penalty is appropriate  under  the  penalty  criteria.  
 Accordingly, I assess  a  penalty  of  $60  for BHP 
 Copper's  violation  of section  103(a)  of the Act as 
 set  forth  in  Citation  No. 7922328.


  ORDER

 Citation No. 7922328 is AFFIRMED  and BHP Copper, Inc.,

is ORDERED TO PAY the Secretary of Labor the sum of $60.00
within 40 days of the date of this decision.

                           Richard W. Manning
                           Administrative Law Judge

Distribution:

Mark M. Savit, Esq.,
Patton Boggs,
2550 M Street, NW,
Washington, DC 20037-1350
(Certified Mail)

Mark R. Malecki, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
4015 Wilson Boulevard,
Arlington, VA 22203-1954
(Certified Mail)

RWM