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

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.