**FEDERAL MINE SAFETYAND HEALTH REVIEW COMMISSION**

Office ofAdministrative Law Judges

721 19thStreet, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX303-844-5268

 

February 24,2020

 

 
| SECRETARY  OF LABOR

  MINE  SAFETY AND HEALTH    

  ADMINISTRATION  (MSHA),

                            Petitioner

 

               v.

 

BOART  LONGYEAR COMPANY, 

                            Respondent                                                                       | CIVIL  PENALTY PROCEEDING

 

Docket  No. WEST 2019-0297-M

A.C.  No. 26-02512-485389 Y12

 

Leeville  Mine |
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**DECISION**

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Appearances:               LuisGarcia, Esq., Office of the Solicitor, U.S. Department of Labor, Los Angeles,California for Petitioner;

Dana M.Svendsen, Esq., Sherman & Howard L.L.C., Denver, Colorado for Respondent.

 

Before:                                    JudgeManning

 

This case isbefore me upon a petition for assessment of civil penalty filed by theSecretary of Labor, acting through the Mine Safety and Health Administration(“MSHA”), against Boart Longyear Company (“Boart”) 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 parties presented testimony and documentary evidence at ahearing held in Elko, Nevada, and filed post-hearing briefs. Two section 104(a)citations and one section 104(g)(1) order, with a total proposed penalty of$82,886.00, were adjudicated at the hearing.[1]Boart was a contractor working at the Leeville Mine, an underground gold minein Eureka County, Nevada. For reasons set forth below, I vacate Citation No.9379548 and Order No. 9379555 and modify Citation No. 9379549. Although I havenot included a detailed summary of all evidence or each argument raised, I havefully considered all of the evidence and arguments. Further, my findings andconclusions are restricted to the particular facts of this case.

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The Secretarybears the burden of proving a violation by a “preponderance of the evidence.” *RAGCumberland Resources Corp.*, 22 FMSHRC 1066, 1070 (Sept. 2000). In order tosatisfy his burden the Secretary must convince the court that the existence ofa fact is more probable than not. *Id*. “If the Secretary fails to meetthis burden then there is no violation, irrespective of any counterarguments.” *SimsCrane*, 41 FMSHRC 393, 396 (July 2019). 

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**I.  DISCUSSIONWITH FINDINGS OF FACT**

**AND CONCLUSIONSOF LAW**

 

On January 14, 2019, Juan Sarabia,[2]a floor mechanic for Boart, was tasked with traveling from Boart’s Salt LakeCity shop to the Leeville Mine, an underground gold mine operated by NewmontGold, to replace a transfer case in a pump rig. Tr. 311, 318. Sarabia loadedthe oil-filled replacement transfer case[3]into his vehicle and traveled to the mine. Tr. 179, 319, 381.

 

Upon arrival at the mine around noon,Sarabia, along with other Boart crew members, gathered in the “doghouse”[4]to prepare the Job Hazard Analysis whiteboard (“JHA board” or “the board”) forthe task of changing out the transfer case. Sec’y Ex. 18; Tr. 132, 178, 315,318-319, 410. Preparing the JHA board involved the entire crew discussing anddocumenting on the board the hazards and risks associated with the task ofreplacing the transfer case and how they planned to mitigate against such. Tr. 162,163, 165, 315, 317, 370-371, 408-409, 429. The group covered suspended loads andthe use of taglines, as indicated by the text on the board.[5]Sec’y Ex. 18; Tr. 164, 371, 372, 408, 424. Boart has a JHA board for every minesite job and the crew always completes the board before beginning a job andrevisits the board each morning during a job. Tr. 165, 372, 408-409, 447-448. Aftercompleting the board that morning, the crew moved the replacement transfer casefrom Sarabia’s truck to an area behind the pump rig and then removed the oldtransfer case from the rig before retiring for the evening.[6]Tr. 178, 316, 322, 361.

 

Sarabia arrived at the mine thefollowing morning, January 15, around 7:00 AM. Tr. 323. Like the day before, heand the other Boart crew members gathered in the doghouse to review the boardand discuss hazards involved with installing the replacement transfer case. Tr.179, 323, 380, 381, 429. After reviewing the board, the crew threw salt aroundthe worksite because snow had fallen overnight and accumulated on the groundand equipment. Tr. 324, 360, 401. Sarabia testified that there was snow on the forksof the forklift that morning. Tr. 360. The crew then went about their varioustasks for the day.

 

Sarabia’s task included removing multiplefittings from the replacement transfer case in order to fit the case into thepump rig. Tr. 382, 391. Given the weight of the case, approximately 500 pounds,Sarabia was concerned that moving the case while it was on the ground would exposepersons to pinch point hazards. Tr. 383. As a result, he planned to use aforklift to suspend the case above the ground so he could position the case toremove the fittings before draining the oil. Tr. 382, 391, 392.

 

Sarabia, along with other crew members, riggednylon straps to the replacement transfer case. Tr. 361, 366. After rigging thecase and moving the forklift into position, the crew attached the other end ofthe rigging straps to the left fork of the lift.[7]Tr. 326, 345, 361, 362, 404. According to Sarabia, he chose to suspend the casefrom the left fork because it allowed him to be in the best position to haveface to face communication with the fork lift operator and also be able to see whetherthe lift operator’s hands were off the lift controls.[8]Boart Ex. B p. 3, 4; Tr. 392, 404. At that point, only Sarabia and Juan Ortega,the lift operator, were working on the task. Tr. 116, 313. Sarabia discussedwith Ortega the hand signals he planned to use while moving the case and how thetwo of them needed to be able to maintain eye contact.[9]Tr. 383-384.

 

Ortega raised the forks, thereby liftingthe rigging and transfer case off the ground. Tr. 327, 399. After picking upthe case, which was behind the pump rig, Ortega drove the lift around a seriesof barricades to the side of the rig.[10]Tr. 361, 409. Sarabia used an attached tagline to prevent the case from rockingback and forth while it was being moved. Tr. 362. After moving the case intoposition, Ortega showed Sarabia that his hands were no longer on the lift controls,indicating that Sarabia could go to work.[11]Tr. 281, 384, 388. The forklift was parked, the tagline was removed, the lift’soutriggers were dropped to the ground, and the transfer case was lifted approximatelytwo to three feet off the ground, i.e., roughly knee height according toSarabia, above a bucket that would catch oil released during the task.[12]Tr. 141-142, 188-189, 327, 328, 333, 338, 353-355, 362, 385, 388, 395, 400, 403.The forklift was powered off. Tr. 384-385, 387-88, 395, 400.

 

Sarabia, who was standing on the leftside of the forks so that he could maintain eye contact with Ortega in the cab,placed his left hand on the transfer case to prevent it from moving and beganthe process of removing the fittings, which required the use of a pipe wrenchin his right hand. Tr. 282, 327, 329, 332, 344, 345, 355, 386, 390-391, 403. Boartintroduced the photographs in Boart Ex. B, which were taken in its Salt LakeCity shop, to illustrate the position of Sarabia’s body as he was preparing toremove the fittings. Shortly after beginning that task, but before draining anyoil, Sarabia heard someone yell “[y]ou stop working, you’re dangerous, you candie.” Tr. 326, 332, 395, 402. Sarabia immediately stopped what he was doing andwalked over to the individual who was yelling at him.[13]Tr. 329, 348, 403. The individual, MSHA Inspector Amanda Gonzalez,[14]asked Sarabia to get his supervisor. Tr. 329-330. 

 

Gonzalez’s recollection is substantiallydifferent. She testified that she traveled to the Leeville Mine on January 15to conduct an EO1 underground inspection. Tr. 20. She initially drove to themine’s safety administration office (the “safety office”), went in, and told amember of Newmont’s safety department that she was there to conduct healthsampling and finish an underground inspection. Tr. 20. After attaching samplingpumps to some of the miners, Gonzalez exited the safety office and walked 30feet to her vehicle to put back items that she did not need to takeunderground. Tr. 20-21, 95. 

 

According to Gonzalez, while walkingback toward the safety office from her vehicle she noticed Sarabia standingunderneath the right fork of the forklift.[15]Tr. 23-25, 74. Gonzalez testified that, although barriers were in the area, shehad a clear line of sight and saw Sarabia using his right hand to guide thetransfer case hanging from a tow strap attached to the middle of the right forkabove. Tr. 23-27, 74, 84, 462-464. According to Gonzalez, the case was initiallyat about the middle of Sarabia’s body[16]and was being raised into the air by Ortega, who was in the cab operating theforklift. Tr. 24-26, 86. Once stopped, the fork from which the case wassuspended was approximately 12 feet off the ground, while the bottom of thetransfer case was approximately 6 feet off the ground, i.e., at approximatelySarabia’s eye level. Tr. 25, 26, 83-84. Gonzalez stated that Sarabia was facingaway from the forklift operator, there was no eye contact between the two, andhand signals were not being given. Tr. 27. She saw no taglines in the area andshe did not see a bucket underneath the transfer case. Tr. 27.

 

Gonzalez testified that only a “splitsecond” elapsed between the time she saw the situation and when she yelled toSarabia to get his attention and called him over. Tr. 28, 83. When Sarabia wasnext to Gonzalez she told him that she was issuing an imminent danger orderbecause he was standing underneath the forklift guiding the transfer case whilethe lift operator was in the cab operating the machine. Tr. 29. According toGonzalez, Sarabia told her that he had been in the process of taking offfittings and draining water from the case when she yelled. Tr. 75-76, 88. 

 

Abe Hess, the Boart pump rig operator, testifiedthat he walked up to Gonzalez at the same time Sarabia did and Gonzalez told himto go get their supervisor, Jory Shumway, who was in his truck. Tr. 120, 139,140, 191, 281, 329-331, 333, 395, 407. According to Sarabia, it was somewhatnoisy due to all of the traffic in the area, but neither the pump rig nor theforklift were running. Tr. 333. Boart’s witnesses testified that Shumway andHess joined Gonzalez and Sarabia as the group moved toward the safety office.[17]Tr. 121-124, 154, 191-192, 331, 334, 411-412. 

 

Gonzalez again offered a substantiallydifferent, and somewhat confusing, account of these events. She first testifiedthat she walked alone with Sarabia to the safety office. Tr. 29. She thenagreed that she met Shumway and Sarabia in the middle of the office parking lot,but then stated that once inside the safety office she told Jason Haynes, aNewmont safety officer, that he needed to go get Shumway. Tr. 30. She testifiedthat she did not speak with Abe Hess that day. Tr. 463. 

 

According to Gonzalez, between the timewhen Haynes left the office to get Shumway and when Shumway arrived, she had a fiveminute conversation with Sarabia during which she discussed the need to use atagline and avoid standing under the forks of a forklift, especially while thelift operator is in the cab. Tr. 30-31. Gonzalez testified that when Shumwayarrived at the office she told him that she was issuing a 107(a) imminentdanger order and discussed the citations she was going to issue in conjunctionwith the order. Tr. 31. Gonzalez claims that both Sarabia and Shumway statedthat they were not aware of the requirement to stay clear of suspended loads orthe need to use a tagline. Tr. 32. She estimated that her conversations withShumway and Sarabia lasted approximately 10 minutes. Tr. 91. 

 

Gonzalez testified that, after she spokewith Shumway, she took a photograph of the area around the forklift from approximatelythe same vantage point where she first observed the Sarabia. Sec’y Ex. 5 p. SOL00022; Tr. 94. She took no measurements as part of her inspection. Tr. 94. Aftertaking the picture, Gonzalez then traveled underground. Gonzalez stated thatshe was “not [at the mine] for Boart Longyear, I was there for Leeville[,]” andtestified that she needed to get underground that day to perform healthsampling and continue the EO1 inspection. Tr. 33, 91-92. 

 

According to Gonzalez, at no pointduring her time on the surface the morning of January 15 did anyone from Boartattempt to show her training documents or the JHA board, and she only becameaware of the JHA board in the weeks prior to hearing. Tr. 33, 68-71. Oncross-examination Gonzalez agreed that an appropriately completed job hazardanalysis could be used as a training guide for task training and that once aminer has performed a task it is no longer a new task. Tr. 77-78.

 

Sarabia disputed that he had anyconversation with Gonzalez when they were in the office and both he and Shumwaytestified that Sarabia was never alone with Gonzalez in the office. Tr.192-193, 396. Shumway, Sarabia and Hess all testified that Sarabia and Hess hadvery little, if any, conversation with Gonzalez that morning.  Tr. 124-125, 334-336,414-415, 419. Rather, Shumway was the only individual who spoke at any lengthwith Gonzalez. Tr. 334-336, 419. According to Shumway, he did not protest when Gonzalezsaid she was issuing the imminent danger order because he did not know thefacts and he had been told by his bosses that it was not his job to fight withinspectors to prove a case. Tr. 115, 123, 126, 134, 136, 140-141, 157 192, 196.Further, Shumway stated that once inside the safety office the only thingGonzalez said to him was that she needed to get with the other MSHA inspectorsunderground. Tr. 123. Shumway testified that at no time did Gonzalez sayanything about Sarabia not using a tagline, his training, or ask that Boartdemonstrate safe procedures. Tr. 134-135, 192. 

 

Sarabia estimated Gonzalez spent maybetwo to three minutes talking to Shumway. Tr. 336. Shumway testified that theentire conversation lasted less than 30 seconds. Tr. 193. Hess testified thathe and Sarabia stood inside an office while Gonzalez and Shumway had only ashort discussion before she left. Tr. 419-420. 

 

Following Gonzalez’s departure from thesafety office, Shumway, Hess, Sarabia and others, at the request of Newmontsafety personnel, filled out a Newmont Job Hazard Analysis form (the “NewmontJHA”) for the task of installing the transfer case. Sec’y Ex. 8; Tr. 56-57, 112,113, 125-127, 145, 193, 340-341, 421. Although Boart’s employees informedNewmont that there was already a JHA board in the doghouse, Newmont neverthelessasked for Boart to complete Newmont’s JHA form. Tr. 112, 422. According toShumway, Boart prepared the Newmont JHA form in response to the imminent dangerorder and because Newmont wanted it filled out. Tr. 114, 125-126. Shumwaytestified that Sarabia was “upset, physically, visibly shaken” when the groupdeparted the office. Tr. 149. 

 

Later the same day, Edwin Spear, an EHSadvisor for Boart, traveled to the mine to talk to the crew. Tr. 279, 145-146. Atthe time he arrived no paperwork had been issued by MSHA to Boart. Tr. 279. Sarabia,Ortega and Shumway provided written statements regarding the events of thatmorning.[18]Tr. 137-139, 147, 221-222, 234; Sec’y Exs. 15, 16, 17. At some point Spearentered the doghouse, reviewed the JHA board, and discussed it with Shumway. Tr.236. Shumway told Spear that the entire crew had discussed the JHA board thatmorning. Tr. 237.

 

Spear also met with Shumway, Hess and JasonHaynes to discuss the Newmont JHA that had been prepared. Sec’y Ex. 8; Tr. 239.It was Spear’s understanding that the Newmont JHA had been prepared in responseto the imminent danger order so that work could be resumed. Tr. 240. He did notdiscuss Boart’s JHA board with Haynes at the time. Tr. 240. However, Speartestified that he did have a discussion with Shumway that the Newmont JHA waspretty much the same thing as the Boart JHA board, but with a few moreelaborate details. Tr. 240-241.

 

After Gonzalez completed her healthsampling underground she returned to the surface around 6:00 PM and met withSpear and Devon Wood, Boart’s pump division regional manager, in the safetyoffice. Tr. 33-34, 217, 241-242. The three of them had a short discussion aboutthe imminent danger order and the safety features of the forklift, includingthe safety check valve which prevented the lift from falling in the event ofhydraulic failure. Tr. 218, 242, 243, 267-268, 282-284, 299. Gonzalez testifiedthat during the conversation she requested that Spear provide training recordsfor Sarabia because she had reason to believe he was not task trained for thisparticular task. Tr. 34, 35. According to Gonzalez, she specifically requestedMSHA form 5000-23 showing that Sarabia had been task trained. Tr. 471-472. Speartestified that Gonzalez did not suggest that she was going to issue a 104(g)(1)order for a lack of task training. Tr. 242.

 

On the morning of January 16 Spear emailedGonzalez a portion of the forklift manual that discussed a feature of the liftthat locked out the system in the event of a hydraulic or other type of system failure.Sec’y Ex. 9; Tr. 58-59, 243-244. The forklift was equipped with this lock-outsystem because it was designed to also be used as a man-lift. Gonzaleztestified that this feature was not relevant because the forklift operator wasin the cab and the lift was in motion at the time she observed the citedconditions. Tr. 59.

 

Spear testified that the morning of theJanuary 16 was the first time he discussed Sarabia’s training with Gonzalez. Tr.285. Specifically, he testified that Gonzalez wanted him to provide informationabout how Boart trained its miners on suspended loads and taglines. Tr. 285. Accordingto Spear, he used an iPad to show Gonzalez Boart’s annual refresher trainingslides as well as the field guide that was given to every employee and kept inthe doghouse.[19] Boart Ex. L; Sec’y Ex. 10; Tr. 286, 288, 300. After showing her the documentson his iPad Spear sent a second email and attached the annual refreshertraining slides. Sec’y Ex. 10; Tr. 61, 245, 301. Spear testified that he sentthe slides to show her that all Boart personnel were trained on suspended loadsand the use of taglines. Tr. 245-246. Spear disputed that Gonzalez asked forany 5000-23 training records at this time and instead asserted that she onlyasked for information about the programs Boart used to train its employees. Tr.246-247. 

 

Spear testified that the slides coveredworking around suspended loads and the use of taglines. Tr. 247-248. Duringannual refresher training, the photograph on the first slide showing asuspended load with miners holding attached taglines would have been accompaniedby a discussion of both suspended loads and taglines. Sec’y Ex. 10 p. SOL 000107;Tr. 247-248. Further, a second slide, which addressed the issue of hazardidentification and specifically listed “Gravity or Overhead hazards,” alsoincluded a photograph of a suspended load with attached taglines and would havebeen accompanied by a discussion about both topics. Sec’y Ex. 10 p. SOL 000119;Tr. 249-250. Finally, a third slide addressing “gravity” related hazards wouldhave involved a discussion of overhead loads and associated hazards. Sec’y Ex.10 p. SOL 000146; Tr. 250. Shumway also testified that a discussion accompaniedeach slide and that more than just the text of the slide was covered. Sec’y Ex.10 p. SOL 000146; Tr. 166-167, 205-207, 215. Spear testified that Sarabia’s5000-23 forms and sign-in sheets for multiple annual refresher trainings provethat Sarabia was given the training represented in the slides. Boart Ex. R; Tr.247.

 

After reviewing the slides sent bySpear, Gonzalez determined that they provided no information about the use oftaglines and working around suspended loads. Tr. 61. 468. Gonzalez sent anemail response to Spear in which she notified him that she would not accept theslides as evidence of training and informed him that she would be issuing a104(g)(1) order. Sec’y Ex. 11; Tr. 61, 63. Spear was surprised by the emailbecause he thought the training materials would be sufficient. Tr. 272. In thesame email Gonzalez stated that she would lift the withdrawal order once Boartprovided the names and 5000-23 forms for each miner who was working on the dayin question. Sec’y Ex. 11; Tr. 63, 256. 

 

Spear responded to Gonzalez’s email thefollowing morning, January 17, with the names of the Boart employees and statedthat he would send the 5000-23 forms shortly. Sec’y Ex. 12; Tr. 64, 259. Laterthat same day Gonzalez emailed Spear four enforcement actions, including CitationNo. 9379548, alleging that a miner was not clear of a suspended load, CitationNo. 9379549, alleging that a tagline was not attached to a suspended load thatwas being guided by a miner and Order No. 9379555, alleging that the subjectminer had not been task trained. Sec’y Ex. 13; Tr. 65, 259.

 

On January 21, after a telephoneconversation with Gonzalez, Spear emailed Sarabia’s 5000-23 form to her. Sec’yEx. 14; Tr. 64-66, 259-260. According to Spear, Gonzalez only requested Sarabia’s5000-23 form for the training he received to lift the 104(g) order. Tr. 260.

 

Bruce Grange, Boart’s seniorenvironmental health and safety coordinator, met with Gonzalez at the closeoutconference on January 22 and again at Boart’s Elko office on January 28. Tr.434, 436. He testified that during both conversations Gonzalez was unwilling tolisten to his arguments about mitigating circumstances. Tr. 436-438, 449-454.

 

Grange testified that Sarabia hadreceived relevant training multiple times and cited new hire training, cranetraining, task training, and annual refresher training as examples. Tr. 434, 448.Moreover, OSHA’s 10 hour training course covered suspended loads and taglines. Tr.297-298, 449. Everyone at Boart received OSHA 10 hour training. Tr. 449. Sarabiatestified that Boart Ex. V was his OSHA training card indicating that he hadsuccessfully completed the OSHA 10 hour training. Tr. 297, 377.

 

At hearing, Spear and Sarabia offeredtestimony regarding photographs of the subject area that show the snow on theleft fork had been disturbed and/or removed, while snow on the right fork had remainedundisturbed.[20]Sec’y Ex. 3 p. 4; Boart Ex. C. p. BOART 000406-000407; Tr. 265, 292-293, 360. BothSpear and Sarabia testified that the disturbed snow on the left fork indicatesthat the crew had rigged the nylon straps to that fork and not the right forkas Gonzalez had alleged. Tr. 265-266, 360. 

 

**A.****Credibility Determination and Resolution of Critical Disputes of Fact**

 

Sarabia and Gonzalez, the only twowitnesses present at the time Gonzalez observed the allegedly violative conduct,offered substantially different accounts. In reaching my decision in thesematters I find it necessary to resolve three critical disputes of fact: (1) whetherthe forklift was powered on and the transfer case was being lifted at the timein question, (2) the positon of the transfer case, and (3) the position ofSarabia relative to the case and forklift. 

 

Based on my observation of the witnessesand my careful evaluation of their respective accounts, I credit Sarabia’stestimony on each of these issues. Specifically, I find that the forklift wasnot powered on and the transfer case was not moving. I further find that the transfercase was suspended from the left fork at roughly the height of Sarabia’s knee. Finally,I find that Sarabia was not underneath the forks but, rather, was in a positionto the left of the case from the prospective of the lift operator, whichafforded him the ability to maintain eye contact with the operator. 

 

In reaching these conclusions I relyprimarily on Sarabia’s clear and convincing testimony regarding his firsthandknowledge of the situation. Although Sarabia testified that he was a little bitnervous at the hearing, he nevertheless provided testimony that was bothinternally consistent and consistent with the testimonies of other witnessesregarding the events that occurred after Gonzalez ordered Sarabia away from theforklift. Tr. 364. His detailed recollection of events and calm demeanor helpedconvince me that his testimony should be credited. 

 

It is important to note that I am notfinding that Inspector Gonzalez testified untruthfully. Rather, based upon myobservations, I am finding that Sarabia was in the best position to observewhat happened and that his recollection was more consistent with other evidenceoffered. Because the inspector did not walk over to the work area to moreclosely examine the conditions, she may have misinterpreted what she observed.

 

Gonzalez’s recollection also appears tobe inconsistent with photographic evidence of the scene. At least three separatephotos, including the single photo taken by the inspector, show that snow hadbeen removed or disturbed on the left fork, while snow on the right fork appearedundisturbed. Sec’y Ex. 5 p. SOL 00022; Boart Ex. C. p. BOART-000406-000407.  Boartargues that the “snow removed from the left forklift tine . . . supports Mr.Sarabia’s testimony that the transfer case was hanging from the left forklifttine” because the rigging straps would have disturbed the snow. Boart Br. 10. TheSecretary argues that “[t]here should be no relevancy afforded to” the close-upphotograph of the forks offered as Boart Ex. C. p. BOART-000406 and that the photocould have been manipulated after the imminent danger order was issued. Sec’yBr. 17 n. 12. However, the court finds that the photograph taken by theinspector, Sec’y Ex. 5 p. SOL 00022, as well as other photographs taken by Boartand/or Newmont, all show the same condition, i.e., an area on the left fork wherethe snow had been removed or disturbed with undisturbed snow on the right fork.As a result, I agree with Boart that the photos support Sarabia’s recollectionof events. 

 

Although I do not know precisely whyGonzalez’s recollection of events is so different from Sarabia’s, I take note thatshe wanted to get underground quickly to conduct health sampling. Gonzalez wasclearly in a rush. She was responsible for conducting underground healthsampling on January 15, but instead found herself dealing with what shedetermined to be an imminent danger on the surface. I am troubled by the truncatednature of the inspector’s investigation of the physical evidence. Gonzalezconceded that she never spoke to the forklift operator, never went inside thebarriers to closely observe the conditions, never took any measurements, neverasked Sarabia to demonstrate or discuss safe procedures for completing thetask, and only took a single photograph.[21]Tr. 90, 92, 93, 94. Notably, Inspector Gonzalez did not take a photo after she firstmet with Sarabia to document the position of the forks and the transfer casebut waited until later after the forks were lowered to the ground and thetransfer case removed. Moreover, the only photo she did take was shot from roughlythe same location where she met Sarabia. She only observed the scene from that vantagepoint. Tr. 94-95. It appears Gonzalez’s need to get underground may have causedher to conduct a rather cursory investigation of the conditions.

 

I am required to resolve genuinedisputes of fact that are relevant in determining whether there was a violationand, if so, the gravity of the violation and the negligence of the operator. Theburden of establishing credible facts to support a violation rests with theSecretary. I have concluded that the Secretary has not met this burden withrespect to many issues, as discussed in more detail below.  

 

**B.Citation No. 9379548**

 

Citation No. 9379548, issued under section104(a) of the Mine Act on January 15, 2019, alleges a violation of Section 57.16009of the Secretary’s safety standards. The Condition or Practice section of thecitation states, in pertinent part, as follows:

 

A mechanic wasfound standing underneath a suspended load while the forklift operator waslocated inside the cab raising the transfer case at Pump Rig LX40 in front ofthe operations dry. The forks were raised approximately 12 feet off the groundand the transfer case was approximately 6 feet off the ground while themechanic was guiding the load with his hand. In the event the suspended loadwere to fall to the ground while the mechanic was standing underneath fatalinjuries would occur. 

 

Section57.16009 requires that “[p]ersons shall stay clear of suspended loads.” 30C.F.R. § 57.16009.

 

Inspector Gonzalez determined that aninjury was highly likely to be sustained and that any injury could reasonablybe expected to be fatal. She further determined that the condition was S&S,affected one person, and was the result of Respondent’s high negligence. TheSecretary proposed a penalty of $33,840.00 for this alleged violation.

 

**Fact of Violation**

 

Neither the body of the citation nor theinspector’s handwritten “Citation/Order Documentation” notes clearly identifywhat exactly the Secretary considered to be the suspended load at issue in thiscitation. Sec’y Ex. 5. Although the language of these documents is vague, theSecretary, in his brief, identifies the forks on the forklift as the suspendedload.[22]The Secretary argues that Boart violated Section 57.16009 because Sarabia was “notclear of the Forklift’s tynes, or outside the limit of its point ofsuspension[.]”[23]Sec’y Br. 11-12. I find the Secretary did not meet his burden of establishingthis alleged violation.[24]

 

Section 57.16009 requires that“[p]ersons shall stay clear of suspended loads.” 30 C.F.R. § 57.16009. TheSecretary’s regulations do not define “stay clear of” or “suspended load” inthe context of section 57.16009. I first address what constitutes a “suspendedload.” Although the Commission has not defined the term, it has twice addressedthe identically worded standard applicable to surface metal and nonmetal mines,i.e., 30 C.F.R. § 56.16009.

 

In *Sims Crane*, 40 FMSHRC 301(Apr. 2018), the Commission affirmed a judge’s decision finding a violation ofsection 56.16009 where a miner traveled within the fall zone of a “spreaderbar” suspended from, and attached to, the hoist hook of a crane via two cables.Similarly, in *Dawes Rigging & Crane Rental*, 36 FMSHRC 3075 (Dec.2014) the Commission affirmed a judge’s decision upholding a violation where aminer traveled under a piece of a crane that was being lifted into place by asmaller crane. Notably, in both of these cases the “suspended loads” were *hanging*from a point of suspension above. 

 

While the Commission has not explicitlystated that suspended loads are only those loads hanging from a point ofsuspension above, it has described section 56.16009 as “the general ruleguiding miners’ interactions with objects suspended from cranes[.]”  *SimsCrane* at 304.  Moreover, judges applying the cited standard have done so insituations involving objects hanging from a point of suspension above. 

In *Haines & Kibblehouse, Inc.*,30 FMSHRC 504, 516 (June 2008) (ALJ), Judge Barbour affirmed a violation of56.16009 where a “pitman assembly” suspended from a crane swung and struckanother individual. Judge Barbour, relying upon the dictionary definition of“suspended” explained as follows:

 

Section 56.16009is straightforward. . . . The noun “load” is modified by the adjective“suspended,” and when used as an adjective “suspended” is defined as being“held in suspension.” *Id*. at 2303. Thus, a “suspended load” is a mass orweight supported by something that is being held in suspension. To be held insuspension is to be in the “state of being hung.” *Id*. “Hung” is the pasttense of “hang,” which is defined as “to fasten so as to allow free motionwithin given limits on a point of suspension.” *Id*. at 1029. Thus, Iconclude a “suspended load” is a mass or weight fastened to allow free motionwithin the given limits of its point of suspension or support, and this is thesame meaning I would reach if I interpreted the standard by applying “suspend”as a verb instead of “suspended” as an adjective.

 

 

Infinding that the “pitman assembly” was a suspended load the judge outlined thepurpose of the standard as follows:

 

Hanging loadshaving free motion can swing within a specific arc or radius. The standard'sgoal is to prevent persons from being hit by such loads through barring personsfrom locating within a hanging load's possible arc or radius. The logic issimple and irrefutable. When persons are outside the limits of a load’s pointof suspension, they will not be struck and injured or struck and killed whenthe load moves freely.

 

*Id*. at 517. JudgeMiller utilized the same analysis in *CCC Group, Inc.*, 34 FMSHRC 1192, 1196-1198(May 2012) (ALJ), where she found that beams hung from a crane constituted a suspendedload. 

 

Although I am not bound by the decisionsof other administrative law judges, I find that the reasoning in *Haines*and *CCC* is sound. In both cases, the judges found that the standard wasdesigned to prevent persons from being struck by loads that were *hung* froma point of suspension above, but were otherwise free to move or swing within aspecific arc or radius. Accordingly, I find that to establish that an object isa “suspended load,” the object must be hung from above. 

 

The Secretary's regulations also do notdefine what “stay clear of” means in the context of the cited standard. In *DawesRigging*the Commission explained that “stay[ing] clear . . . requires morethan simply staying out from directly underneath a suspended load[,] . . . and[w]hether a person is clear of a suspended load must be determined byconsidering the particular facts surrounding the violation.” 36 FMSHRC 3075,3078 (Dec. 2014) (*citing Anaconda Co.*, 3 FMSHRC 299, 301(Feb.1981)).  TheCommission noted that miners are not “clear” of a load when they are “locatedin positions in which they [are] in danger from the movement or falling” of theload. *Id*. at 3078. A “case cannot rest on a vague observation thatsuspended loads move in unpredictable ways.” *Id*. 

 

I find that the Secretary failed toestablish by a preponderance of the evidence that the forks were a “suspendedload.” I agree with my colleagues that in order to be a *suspended* load,a load must be hanging from a point of suspension above. There is no disputethat the forks were *elevated*. However, the cited standard is notconcerned with elevated loads, but rather loads that are *suspended*,i.e., hanging from a point of suspension above. I find that the forks were nota suspended load.

In addition, I credited Sarabia’stestimony that he was not standing under the forks and that the forklift was shutdown. Further, because the forklift was equipped with the safety check valvedescribed by Spear and detailed in Sec’y Ex. 9, and Ortega’s hands were not on thecontrols, there was no possibility of inadvertent movement of the forks.[25]

Finally, although not explicitlyaddressed by the parties, I also find that Sarabia’s presence near the transfercase did not amount to a violation of the cited standard. There can be nodispute that the transfer case was a suspended load. It was hanging from the leftfork by the rigging. I find that Sarabia was “clear” of the transfer case. Gonzalezconceded that she never observed Sarabia under the transfer case. Tr. 75. Moreover,given the narrow profile of the transfer case, little to no “arc or radius”existed in which a miner could be struck if the case were to rotate. Similarly,because the lift was powered off and the load was not moving, there was no riskof the load swinging and striking a miner. Although there is no dispute thatSarabia had a hand on the case, his hand was located at the top of the case andwould not have been endangered if the case rotated.[26]Boart Ex. B illustrates Sarabia’s approximate position relative to the forksand the transfer case at the time the inspector observed him. Consequently, Ifind that Sarabia was “clear” of the transfer case because he was not in dangerfrom the movement or falling of the load. I have reached this conclusion takinginto consideration the work that he needed to perform.

 

I find that the Secretary failed to meethis burden of proof with respect to this citation. Inspector Gonzalez spent thevast majority of her time talking with officials of Boart outside and theninside the Newmont safety office. She did not walk around the barricades toenter the area where the forklift was parked to get a better perspective of theconditions and she did not take a photo of the conditions when the transfer casewas still rigged to the forklift while in a raised position. 

 

            CitationNo. 9379548 is **VACATED**. 

 

**C.Citation No. 9379549**

 

Citation No. 9379549, issued undersection 104(a) of the Mine Act on January 15, 2019, alleges a violation ofSection 57.16007(a) of the Secretary’s safety standards and asserts that amechanic was observed guiding a suspended load with his hand and that notagline was in place on the load. Specifically, the citation alleges that themechanic was guiding a transfer case, which was suspended approximately sixfeet above the ground. Section 57.16007(a) requires that “[t]aglines shall beattached to loads that may require steadying or guidance while suspended.” 30C.F.R. § 57.16007(a).

 

Inspector Gonzalez determined that aninjury was highly likely to be sustained and that any injury would reasonablybe expected to be permanently disabling. She further determined that thecondition was S&S, affected one person, and was the result of Respondent’shigh negligence. The Secretary proposed a penalty of $15,206.00 for thisalleged violation.

 

**Fact of Violation**

 

I find that the Secretary hasestablished a violation of the cited standard because a tagline was not attachedto the transfer case while Sarabia was observed steadying it with his hand. TheSecretary’s regulations do not define “steadying” and the Commission has notaddressed the subject standard. In the absence of a regulatory definition of aword, the ordinary meaning of that word may be applied. *Peabody Coal Co.*,18 FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997). Thedictionary defines “steadying,” the present participle form of the verb“steady,” as “to make or keep steady.” *Webster's New Collegiate Dictionary*1129 (1979). The adjective form of “steady” is defined, as relevant to thisanalysis, as “firm in position: fixed.” Consequently, the cited standardrequires that a tagline shall be attached to a suspended load when the load mayneed to be brought to a fixed position or kept in a fixed position. 

 

I find that the transfer case requiredsteadying and therefore a tagline should have been attached. There is nodispute that Sarabia was observed with his hand on the transfer case. Sarabiahimself testified that his hand was on the case for the purpose of preventing itfrom moving while he worked with his other hand to remove the fittings. Byplacing his hand on the suspended load for the purpose of preventing motion,Sarabia was “steadying” the load, i.e., keeping it in fixed position. Sarabiatestified that, although a tagline was attached during the transportation ofthe case from behind the pump rig to the side of the rig, the tagline was detachedbefore he began the task of removing the fittings. Because a tagline was notattached to the case at the time Sarabia was steadying the load, as is requiredby the clear language of the standard, the Secretary established a violation.[27]

 

**Gravity and S&S**

 

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). Inorder to establish the S&S nature of a violation, the Secretary must prove“(l) 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 l, 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).

 

The Commission has explained that thefocus of the *Mathies* analysis “centers on the interplay between thesecond and third steps.” *ICG Illinois*, 38 FMSHRC 2473, 2475 (Oct. 2016)(citing *Newtown Energy Inc.*, 38 FMSHRC 2033 (Aug. 2016)). The secondstep requires the judge to adequately define the “particular hazard to whichthe violation allegedly contributes[,]” and then determine whether “thereexists a reasonable likelihood of the occurrence of the hazard against which themandatory safety standard is directed.” *Id*. at 2475-2476. This determinationmust be made “based on the particular facts surrounding the violation[.]” *Id*.The third step then requires the judge to assume the existence of a hazard andassess whether the hazard “was reasonably likely to result in serious injury.” *Newtown*at 2038; *ICG Illinois* at 2476.

 

I find that the Secretary failed toestablish that the violation was S&S. I have already found that Boartviolated the standard because a tagline was not attached to the transfer caseat the time Sarabia was steadying it with his hand. Here, the hazard to whichthe violation allegedly contributes is a miner being unable to safely steady aload due to the lack of a tagline. A tagline is really designed be used when pullinga load into a desired position and it is not clear from the record whetherSarabia could have used a tagline to steady the transfer case while removingthe fittings and draining the oil. He likely would have needed to hold thetagline immediately adjacent to the transfer case in order to keep it steady. 

 

The Secretary, in his brief, argues thatSarabia could have been struck if the transfer case swayed or became detached.[28]Sec’y Br. 17. However, given my finding that the case was not in motion and thelift was powered off, there was very little risk of the case swinging. Moreover,the Secretary did not introduce evidence regarding the likelihood of the riggingstraps breaking or slipping off the fork or transfer case. The MSHA inspectordid not walk over to the transfer case to see whether it securely attached tothe fork. Consequently, the Secretary did not establish that it was reasonablylikely that the hazard contributed to by the violation would result in an injury.

 

I also find it unlikely that any injurywould be sustained. If the case did swing, it would only be because of someoutside force, e.g., wind or Sarabia pushing or pulling the case with his hand,and any swinging motion would be minimal. Again, there was no proof that thetransfer case would fall from its rigging or that the forks would fall. I find ithighly unlikely that any injury would be sustained. As a result, the violationwas not S&S and the gravity was low.

 

**Negligence**

 

The Commission has recognized that“[e]ach mandatory standard ... carries with it an accompanying duty of care toavoid violations of the standard, and an operator’s failure to meet theappropriate duty can lead to a finding of negligence if a violation of thatstandard occurs.” *A.H. Smith Stone Co.*, 5 FMSHRC 13, 15 (Jan. 1983). Indetermining whether an operator has met its duty of care, the Commissionconsiders “what actions would have been taken under the same circumstances by areasonably prudent person familiar with the mining industry, the relevantfacts, and the protective purpose of the regulation.” *Jim Walter Res. Inc.*,36 FMSHRC 1972, 1975 (Aug. 2014) (footnote omitted).

 

While the Secretary argues that Boartwas highly negligent, I find that Boart’s negligence was only moderate. Theinspector relied primarily on two factors in making her negligencedetermination: (1) her belief that Sarabia and Shumway were unaware of theproper use of taglines, and (2) Boart’s alleged failure to produce trainingrecords evidencing that Sarabia had been trained on the use of taglines. Sec’yBr. 18. As explained more thoroughly below in my discussion of the tasktraining order, I find that the Secretary failed to establish that Sarabia wasnot task trained. Boart was only moderately negligent.[29]I assess a penalty of $275.00.

 

**D.Order No. 9379555**

** **

Order No. 9379555, issued under section104(g)(1) of the Mine Act on January 15, 2019, alleges a violation of Section 48.27of the Secretary’s safety regulations and asserts that a mechanic was notproperly task trained. Specifically, the order alleges that the mechanic failedto demonstrate safe procedures when working with a suspended load. Section 48.7requires, generally, that miners be properly trained prior to performing newtasks.[30]30 C.F.R. § 48.27.

 

Inspector Gonzalez determined that aninjury was highly likely to be sustained and that any injury could reasonablybe expected to be fatal. She further determined that the condition was S&S,affected one person, and was the result of Respondent’s high negligence. TheSecretary proposed a penalty of $33,840.00 for this alleged violation.

 

**Fact of Violation**

 

The Secretary argues that Sarabia’sconduct and statements made to Gonzalez by Sarabia and Shumway led her tobelieve that there was a “lack of training about the hazards of working undersuspended loads and the proper use of taglines[.]” Sec’y Br. 19-20. Based onthat belief and the lack of direct evidence of Sarabia’s task training providedto Gonzalez, the Secretary argues that the order was properly issued. Sec’y Br.20.

 

I find that the Secretary failed toestablish that Sarabia was not task trained on how to work with a suspendedload. In reaching this conclusion I rely primarily on two points. First, Gonzalezpremised the issuance of the order on factual assertions that I declined tocredit. Gonzalez testified that she issued the order, at least in part, becauseSarabia was not using a tagline, was guiding the transfer case with his handwhile it was in motion, and was standing under the forks that were 12 feet offthe ground. Tr. 53. However, I credited Sarabia’s testimony that the transfercase was not in motion and he was not under the forks. 

 

Second, Boart put on considerableevidence that Sarabia had received training on suspended loads and the use oftaglines.[31]Sarabia was an experienced mechanic who had previously worked with suspendedloads and taglines. I credit the testimonies of Sarabia, Shumway and Hess thatthe crew gathered in the doghouse the mornings of January 14 and 15 to prepareand review the JHA board by discussing and documenting hazards presented andhow to protect against those hazards while replacing the transfer case. Boart’switnesses offered corroborating testimony that suspended loads and taglineswere covered during those gatherings. Shumway and Hess testified that, giventhe nature of the work Boart does, suspended loads and taglines are discussed andencountered almost “every day.” Tr. 132, 167, 408. Although Gonzalez never sawthe JHA board, at hearing she acknowledged that an appropriately completed jobhazard analysis could be used as a training guide for task training. MSHA’s ownPPM recognizes this fact. Boart Ex. W. Notably, the Secretary did not disputethat the JHA board as displayed in Sec’y Ex. 18 was “appropriately completed.”

 

I also find that Sarabia received other priortraining on suspended loads and taglines during MSHA mandated annual refreshertraining courses. Sarabia attended annual refresher training courses in 2016,2017 and 2018, as evidenced by the sign-in sheets and signed 5000-23 forms. BoartEx. R. While Gonzalez believed that the annual refresher training slides sentto her by Spear were “insufficient training” for purposes of satisfying thecited standard, she offered little reasoning why. Sec’y Ex. 10, 11. I creditthe testimonies of Spear and Shumway that each eight hour annual refreshertraining course covered suspended loads and taglines during a slidepresentation that was accompanied by a discussion of the slide content. 

 

Sarabia also received relevant training duringhis OSHA 10 hour certification. Sarabia successfully completed the OSHA 10 hourcourse in 2012, as evidenced by his signed OSHA training card. Boart Ex. V. Icredit the testimonies of Spear and Grange that the OSHA 10 hour training,which every Boart employee must take, covered suspended loads and taglines. Tr.297-298, 449.[32]

 

Given my analysis, I find that the Secretaryfailed to establish by a preponderance of the evidence that Sarabia had notbeen task trained regarding suspended loads and the use of taglines. Order No. 9379555is **VACATED**.

 

**II.  APPROPRIATECIVIL PENALTY**

 

Section 110(i)of the Mine Act sets forth the criteria to be considered in determining anappropriate civil penalty. 30 U.S.C. § 820(i). According to MSHA’s Mine DataRetrieval System website, Boart worked over 1,000,000 hours in each of 2017,2018 and 2019, which correlates with a large contractor. 30 C.F.R. § 100.3Table V. The parties have stipulated that the penalties, if affirmed, will notaffect Boart’s ability to remain in business. Boart has a history of 19 paid citationssince October 17, 2017 issued at all mines where it was working, only one ofwhich was designated as S&S. Sec’y Ex. 20. It has no history of previouscitations at the Leeville Mine. The gravity and negligence of Citation No.9379549 are discussed above. Citation No. 9379549 was timely abated. Sec’y Br.p. 3. Based on the penalty criteria I assess a penalty of $275 for Citation No.9379549. This penalty is similar to the penalty that would be assessed usingthe Secretary’s penalty point system at 30 C.F.R. § 100.3.  

 

**III.  ORDER**

** **

For reasons setforth above, Citation No. 9379548 and Order No. 9379555 are **VACATED**. CitationNo. 9379549 is **MODIFIED** to a non-S&S violation with moderatenegligence. Boart Longyear Company is **ORDERED TO PAY** the Secretary ofLabor the sum of $275 within 40 days of the date of this decision.

 

 

 

 

/s/Richard W. Manning

                                                                         RichardW. Manning

                                                                         AdministrativeLaw Judge

 

 

 

Distribution:

 

LuisGarcia, Esq., Office of the Solicitor, U.S. Department of Labor, 350 SouthFigueroa Street

Suite370, Los Angeles, CA 90071-1202 (Certified Mail)

 

DanaM. Svendsen, Esq., Sherman & Howard L.L.C., 633 17th Street, Suite 3000,Denver, CO 80202-3622 (Certified Mail)

----

[1]The three enforcement actions in this proceeding were issued along with imminentdanger Order No. 9379547, which Boart neglected to contest. The imminent dangerorder is not before me. *See Sims Crane Inc.*, 39 FMSHRC 1367 (July 2017);*see also ACI Tygart Valley*, 38 FMSHRC 939 (May 2016). During aconference call with the parties prior to hearing I made clear that I would notallow the Secretary to rely upon the language in the Condition or Practicesection of the 107(a) order to establish the underlying facts in this case. *SeeKnife River Const.*, 38 FMSHRC 1289, 1294 (June 2016) (Contrasting 107(a)imminent danger orders, which are reviewed from the perspective of anobjectively reasonable inspector, with violations of mandatory safetystandards, which the Secretary must prove by a preponderance of the evidence).During this call, I advised counsel for the Secretary that he would be requiredto establish the alleged violations by a preponderance of the evidencepresented at the hearing. 

[2]Sarabia has worked for Boart for approximately eight years, including a periodwhere he worked in oilfields and routinely dealt with suspended loads andtaglines. Tr. 311, 368-370. Prior to becoming a mechanic he worked as a floorhelper, mast and derrick hand, and safety man. Tr. 364, 369. As a safety man hewas responsible for providing hazard training to others. Tr. 369. While henormally worked at Boart’s Salt Lake City shop, he routinely traveled to minesites to work on equipment. Tr. 366. He has taken apart and assembled manypieces and parts of equipment, including transfer cases on pump rigs. Tr. 365.He operated a forklift daily when working on drilling and pump rigs. Tr.365-367.

 

[3]Oil was used to lubricate the interior of the case and prevent moisture fromcausing rust. Tr. 179, 381.

 

[4]The “doghouse” was a walk-in trailer located next to the subject pump rig. Tr.161-163. 

 

[5]Sarabia and Edwin Spear, an Environment Health and Safety (“EHS”) advisor withBoart, both testified that they would expect to see a JHA board at every Boartworksite. Tr. 216, 295, 375. Jory Shumway, the field supervisor in charge ofthis particular job, testified that, although he did not have a specificrecollection of the board on January 14, he would expect that taglines andsuspended loads were covered and documented since they are usually on the boardevery day. Tr. 113-114, 131-132, 313. Abe Hess, a Boart rig operator, testifiedthat he filled out parts of the board. Tr. 424. During Hess’s testimony heinitially appeared to be under the impression that Boart began site setup onJanuary 13. Tr. 423-425. However, his later testimony made clear that hisreferences to January 13 were in error and he should have been referencingJanuary 14 instead. Tr. 426.

 

[6]Sarabia testified that he used a used a tagline during the removal of the oldcase. Tr. 338.

 

[7]For purposes of the decision, references to the right and left fork, or rightand left side of the forklift, are made from the perspective of an individualsitting in the forklift operator’s cab. The forklift at issue, a JLGTelehandler, was an extended boom forklift. The operator’s cab was located onthe left, while the boom was to the right of the operator cab. Sec’y Ex. 9; Tr.183, 184. Given the position of the cab, the operator had a better view of theleft fork. Tr. 184-185. 

 

[8]Sarabia explained that he always suspends machinery from the left fork becauseusing the right fork required the presence of another person to act as aspotter. Tr. 404.

 

[9]Boart employees use hand signals to communicate with equipment operators. Tr.181. Employees are instructed on the hand signals “as soon as they come intothe field.” Tr. 181.

 

[10]Abe Hess, a Boart pump rig operator, testified that barricades, or barriers,surrounded the whole worksite as depicted by yellow blocks in Boart Ex. A p. 4;Tr. 407, 409-410. Spear testified that the concrete barriers, which were“Jersey” freeway barriers, were approximately three feet high and werepositioned all the way around the pump rig and doghouse, with a small openingfor the forklift to get in and out. Tr. 231-233. Spear also used a green pen toidentify on Sec’y Ex. 3A the approximate location of the barriers but themarkings are difficult to see because the Secretary laminated the exhibit. Tr.232-233, 266. He noted that the barriers on the aerial photos were not in thosepositions on January 15 but were located as shown in Boart Ex. A p. 4; Tr. 267.He further testified that anyone beyond the barriers looking at the pump rigand forklift may have had their view obstructed. Tr. 233. Shumway testifiedthat the markings on Boart Ex. A p. 4 accurately depicted the location of thepump rig, doghouse, forklift, and barricades on January 15. Tr. 171, 175.

 

[11]Boart’s “Show Hands Policy,” required equipment operators to show others thattheir hands were not on the equipment controls, thereby indicating it was safefor those around the equipment. Tr. 182, 384.

 

[12]Shumway and Sarabia testified that the best location for the transfer caseduring this task was just above the bucket on the ground. Tr. 188-189, 389. Ifthe transfer case was above a mechanic’s head, the mechanic would not be ableto reach the fittings or have leverage to manipulate tools needed during thetask.  Tr. 186, 188. Further, oil would pour onto the ground and the mechanicif the plug was opened while the case was that high. Tr. 186. Sarabia, who isapproximately 5 feet, 4 inches tall, testified that if the case had been abovehis head he would not have been able to use the tools necessary to complete thetask. Tr. 388.

 

[13]Sarabia testified that Gonzalez was approximately 15 to 20 feet away from himwhen he first heard her yell and that he ultimately walked 10 to 15 feet tomeet her. Tr. 329, 387.  

 

[14]Gonzalez has been an inspector with MSHA for four years. Tr. 14. Prior toworking for MSHA she spent 10 years as a heavy equipment operator at an openpit mine. Tr. 73.

 

[15]Gonzalez estimated that when she first saw Sarabia under the fork she wasapproximately 10 feet from her vehicle on her way back toward the safety officeand Sarabia was approximately 10 feet to her right. Sec’y Ex. 3A; Tr. 30. 

 

[16]Gonzalez testified that she is five feet, six inches tall and that Sarabia isapproximately six feet tall. Tr. 84. Sarabia testified that he is approximatelyfive feet, three to four inches. Tr. 388.

[17]Hess testified that he heard Gonzalez yell at Sarabia and, when he approachedGonzalez she asked for his name and if he was a supervisor before telling himto go get his supervisor. Tr. 415, 418. According to Hess it took him about 15seconds to get Shumway and for the two of them to return to Gonzalez andSarabia, at which point the group then headed toward the safety office. Tr.419.

 

[18]Ortega did not appear at hearing. His witness statement was offered intoevidence. Sec’y Ex. 16. Because Ortega did not appear at hearing and could notbe cross-examined regarding the statement, I give it no weight.

 

[19]There is some dispute regarding the timing of certain requests, what wasrequested, and when those documents were provided. However, given my findingsbelow with regard to Order No. 9379555, I need not resolve those conflicts.

 

[20]According to Grange, the pictures contained in Boart Ex. C were sent to himshortly before hearing by a Newmont safety employee who had found them in afolder Newmont kept regarding the inspection. Tr. 441. The Newmont employeetold Grange that the pictures were taken the day Boart was ordered to shutdown. Tr. 441. According to Grange, Newmont takes pictures of every conditioncited at the mine even when the citation is issued to a contractor. Tr. 444.

[21]All of the photographs of the scene introduced into evidence were taken afterthe forks had been lowered and transfer case removed from the forklift. 

 

[22]The Secretary states that “the primary issue in this case is whether Mr.Sarabia was ‘clear’ of the suspended load – Forklift’s tynes.” Sec’y Br. 11. Hefurther states that the inspector observed Sarabia “underneath a suspendedload, the Forklift’s right tyne[.]” *Id*. at 11-12. 

 

[23]The terms “tyne,” “tine” and “fork” were used interchangeably throughout thehearing and in the parties’ briefs. 

 

[24]Boart, in its brief, disputed Gonzalez’s description of the events and arguedthat Sarabia’s testimony should be credited. I have already addressed thecritical disputes of fact above.  

[25]In *SimsCrane*, 40 FMSHRC 301 (Apr. 2018), the Commission addressed the relationshipbetween section 56.16009 and 56.14211. The Commission stated that “the generalmandate” of section 56.16009 and the “more precise language of section56.14211” must be “read harmoniously to arrive at a reasonable result[.]” 40FMSHC at 304. Section 56.14211, in general, prohibits miners from working underraised portions of mobile equipment, or components of the equipment, until theequipment has been blocked or mechanically secured. 30 C.F.R. § 56.14211. MHSA’sProgram Policy Manual (“PPM”) states that the standard is designed “to preventa ‘free and uncontrolled descent’ in the event of a sudden failure of thesystem holding up the raised component.”  IV MSHA, U.S. Dep't of Labor, ProgramPolicy Manual, Parts 56/57, at 55 (2015). The PPM expressly states that “[h]ydraulictelescoping boom cranes with flow restrictions or check valves in the hydraulicsystem will prevent a free and uncontrolled descent of the boom and attachedwork platform.” While the parties did not present this argument, it appearsthat the Secretary’s own interpretive guidance acknowledges that safety checkvalves may satisfy blocking requirements.

 

[26]In *Freeport-McMoRanSierrita*, 39 FMSHRC 1105, 1128 (May 2017) (ALJ), I found that a minerguiding a moving suspended load with his hands was not “clear” of the load. Inthat case the miner was operating in a small, confined area on the bed of a flat-bedtruck, which was approximately four feet off the ground. Given the small areain which the miner was working and the fact that he would have to jump off thebed of the truck in order to “exit” the area, I found that it was critical heremain away from the load. Unlike the miner in *Freeport*, Sarabia wasstanding on the ground with no apparent obstacles nearby and the load he wastouching was not moving.

 

[27]Boartargues that the citation should be vacated because the evidence does notestablish that the transfer case required steadying or guidance. Boart Br. 11.However, Boart’s brief concedes that “Sarabia was standing next to the transfercase steadying it[.]” *Id*. at 12. 

[28]The Secretary made other arguments based on Gonzalez’s testimony that the casewas moving at the time she observed the condition. Sec’y Br. 16-18. However,given my credibility determinations above, I need not address those arguments. 

 

[29]The conduct of a rank-and-file miner is not imputable to the operator indetermining negligence for penalty purposes. The operator's supervision,training, and disciplining are relevant. *Fort Scott Fertilizer-Cullor, Inc.*,17 FMSHRC 1112, 1116 (July 1995).

[30]The citation, as modified, was issued for an alleged violation section 48.27.The Secretary, in his brief, states that subsection (c) of the standard isapplicable in this instance. Sec’y Br. 19. Section 48.27(c) states that “[m]inersassigned a new task . . . shall be instructed in the safety and health aspectsand safe work procedures of the task, including information about the physicaland health hazards of chemicals in the miner's work area, the protectivemeasures a miner can take against these hazards, and the contents of the mine'sHazCom program, prior to performing such task.” 30 C.F.R. § 48.27(c).

 

[31]TheSecretary, in his brief, states that Boart never provided Gonzalez with directevidence of Sarabia having been trained. Sec’y Br. 6-8, 19-23. This court mustconsider all the evidence presented at a hearing and not just the informationthat was given to the inspector at the time the order was issued. *See KnifeRiver Const*., 38 FMSHRC 1289, 1294 (June 2016). I have considered all ofevidence of training and not just what the inspector was aware of at the timeshe issued the order.  

 

[32]While not critical to my analysis, I do take note of training Sarabia receivedfrom Barrick, another mine operator, in June of 2018 that specifically coveredworking under suspended loads. Boart Ex. T; Tr. 377-378. Further, I note thatSarabia had access to Boart’s “EHS Management System Field Reference” document,which references staying away from suspended loads. Boart Ex. L p. BOART000196.