**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

TELEPHONE:303-844-5266 / FAX: 303-844-5268

 

March 26, 2020

 
| SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH       

 ADMINISTRATION, (MSHA),

             Petitioner,

 

             v.

 

BRAGG CRANE SERVICE,

              Respondent.                                              |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. WEST 2019-0303

A.C. No. 26-00803-487971 6KB

 

 

 

 

Mine: Spanish Springs Pit #6 |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION ANDORDER**

 

Appearances:              SonyaP. Shao, U.S. Department of Labor, Office of the Solicitor, 350 S. FigueroaStreet, Suite 370, Los Angeles, CA 90071

                                    PerryP. Poff, Donell, Melgoza & Scates LLP, 3300 Sunset Boulevard, Suite 110,Rocklin, CA 95677

 

Before:                                    Judge Simonton 

 
    - INTRODUCTION

** **

This case is before me on apetition for assessment of civil penalty filed by the Secretary of Labor,acting through the Mine Safety and Health Administration, against Bragg CraneService (“Bragg” or “Respondent”), pursuant to the Federal Mine Safety andHealth Act of 1977 (Mine Act), 30 U.S.C. § 801.[1]This case involves one Section 104(a) citation alleging a violation of 30C.F.R. § 56.16009. The Secretary proposed a penalty of **$2,615.00.** Thecitation was designated as significant and substantial (S&S), highly likelyto result in a fatal injury, and involving high negligence on the part of theRespondent. 

 

The parties presented testimony anddocumentary evidence at a hearing held in Reno, Nevada on October 23, 2019. MSHAInspector Kimberly Hakala testified for the Secretary. Bragg mechanic/oilerKyle McPartland, crane operator Zachary Cramer, and branch manager Dean Stonetestified for Respondent. After fully considering the testimony and evidencepresented at hearing and the parties’ post-hearing briefs, I modify CitationNo. 9374373 as set forth below. I assess a penalty of **$200.00**.

** **
    - STIPULATIONS OF FACT

** **

At hearing, the parties agreed tothe following stipulations of fact included in their prehearing submissions:

 
    - Respondent was at all times relevant to this matter an     independent contractor performing services or construction at Spanish     Springs Pit #6.

 
    - The subject mine is a “mine” as that term is defined in     Section 3(h) of the Mine Act, 30 U.S.C. § 802(h).

 
    - At all times relevant to this case, the products of the     subject mine entered commerce, or the operations or products thereof     affected commerce, within the meaning and scope of Section 4 of the Mine     Act, 30 U.S.C. § 803.

 
    - Bragg Crane Service is subject to the jurisdiction of the     Mine Act, 30 U.S.C. § 801,  et seq .

 
    - These proceedings are subject to the jurisdiction of the     Federal Mine Safety and Health Review Commission and its designated     Administrative Law Judges pursuant to Sections 105 and 113 of the Mine     Act, 30 U.S.C. §§ 815, 823.

 
    - 30 C.F.R. § 56.16009 is a mandatory health or safety     standard as that term is defined in Section 3(1) of the Mine Act, 30     U.S.C. § 802(1).

 
    - The citation contained in Exhibit A attached to the     Petition for Assessment of a Penalty for this docket is an authentic copy     of the citation at issue in this proceeding. 

 
    - The individual whose name appears in Block 22 of the     citation at issue in these proceedings was acting in her official capacity     as an authorized representative of the Secretary when the citation was     issued.

 
    - The exhibits offered by the parties are authentic, but no     stipulation was made as to their relevance or the truth of the matters     asserted therein.

 

Joint Prehearing Statement at 3; *See*Tr. 7.

** **

** **

** **
    - SUMMARY OF TESTIMONY

** **
    The Secretary

** **

MSHA Inspector Kimberly Hakala[2] testified for theSecretary. She stated that on December 10, 2018, she went to Spanish SpringsPit #6 to conduct a regular inspection. Tr. 14. Once she arrived, she learned thatBragg was on site that day to pick a hopper away from the primary plant. Tr.15. She testified that Martin Marietta’s plant manager, Abram Woodward, accompaniedher while she observed the pick, and that he took photos. Tr. 17. 

 

The hopper was lifted off of theplant, rotated, and placed on the ground. Tr. 18, 21, 24, 64–65. Hakala witnessedthe entire job from an elevated catwalk, approximately 60–80 feet away from wherethe load was ultimately placed. Tr. 44–45, 69–70; *see*Tr. 17; Ex. S–7,p. 2. Hakala testified that two tag lines were attached to the load, and that oneof the lines was initially held by a man on an elevated catwalk. Tr. 19, *see*Ex. S–7, p. 2. She stated that the man moved along the catwalk whileholding the tag line and then threw the tag line to the ground to be retrievedby another miner. Tr. 19. Then, according to Hakala, a Bragg employee and aMartin Marietta employee who were both on the ground “moved in”—the MartinMarietta miner to retrieve the tag line and the Bragg miner to observe wherethe hopper was in relation to the plant structure. Tr. 19–20.

 

Hakala testified that when the twominers moved in towards the tag line, the hopper was positioned directly abovethem. Tr. 20. She issued a verbal imminent danger order[3] to Woodward basedon her observation that the miners were standing beneath the load and were indanger of being struck by it. Tr. 21. Hakala stated that Woodward shouted downto the miners, they moved out from under the load, and “within moments both of themcame back in.” Tr. 22–23. After Hakala told Woodward again to remove the minersfrom the area, he shouted to them a second time and they thereafter stayed outfrom underneath the suspended load. Tr. 23. Hakala explained that she believedthe miners went back in the second time in order to retrieve the tag line again,since they had dropped it the first time they were told to move away from the load.Tr. 23.

 

Hakala further testified that afterthe hopper was placed on the ground, she and Woodward made their way down tothe ground level to have a safety briefing with the miners, where she explainedwhy she issued the imminent danger order. Tr. 24, 53. She stated at hearingthat McPartland, the Bragg employee on the ground during the pick who identifiedhimself as the “leadman,” told her during this safety briefing that he was notdirectly under the load but was two feet to the side of it, within the “fallzone” of the hopper. Tr. 24–26, 56.

 
    The Respondent

** **

Bragg mechanic/oiler KyleMcPartland,[4]crane operator Zachary Cramer,[5]and branch manager Dean Stone[6]testified for Respondent. McPartland was the signalman for this job, andasserted at hearing that he has no supervisory responsibility in his position. Tr.96, 114. He testified that after the Bragg employees arrived at the mine siteon December 10, 2018, they received site-specific training and were thenescorted to where the hopper was located to set up the crane and had a safetymeeting with the Martin Marietta employees involved in the job. Tr. 99–100. McPartlandsaid that the dimensions of the fall zone—the area where the hopper might endup in the event it fell or tipped over—were not discussed in exact terms. Tr.133. Once the rigging was set up and the miners were getting ready to pick thehopper, Inspector Hakala arrived and asked a few questions. Tr. 102. 

 

McPartland stated that the liftbegan upon his signal, while he was located on an elevated catwalk observingthe boom angle of the crane. Tr. 105–06. He and one Martin Marietta miner thenwent down to the ground level to observe the hopper’s location as it was movinginto place. Tr. 107–08; *see* Ex. S–7, p. 2. By his estimate, Hakala was80 to 90 feet away from him at this point in the pick. Tr. 108. 

 

According to McPartland, the tag lineheld by the miner who stayed up on the catwalk was never dropped. Tr. 109. McPartlandstated that the miner was preparing to throw the line down to the MartinMarietta miner on the ground right before Woodward yelled at him not to throwit. Tr. 109. The load was brought in closer and rotated accordingly—withouteither tag line ever being dropped—and then lowered onto the ground. Tr. 108–09,140–41. 

 

McPartland testified that Hakalatalked to him individually once the load was on the ground. Tr. 115. Accordingto him, she never questioned him about how close he was to the load or whetherhe would have been struck by the load if it fell. Tr. 115. McPartland statedthat he remembered his conversation with Hakala to be limited to questionsabout his name and his role in the company and about her opinion that more taglines should have been used. Tr. 116. 

 

McPartland asserted that he movedaway as the hopper was moving closer to him, and that no miner ever entered anarea where he would have been struck by the load. Tr. 116, 149. He stated thatthe closest he was to the load as it was lowered was 10 feet away. Tr. 117. 

 

Zachary Cramer operated the craneduring the inspection at issue. According to Cramer, it was Martin Marietta—notBragg—that decided to use two tag lines to control the load. Tr. 164–65. Hetestified that at one point, he heard someone yell “stop, don’t throw the tagline down” as the Martin Marietta crew member on the catwalk holding the tagline was coiling up the line and apparently preparing to throw it down. Tr.170. He stated that the miner never threw the line down and held onto it untilthe hopper was on the ground. Tr. 170.

 

Cramer testified that a fall zoneof 10 feet was identified prior to the pick, and that everyone involved in thejob was told to stay 10 feet clear of the hopper. Tr. 173–74. He stated that henever saw anyone enter the fall zone, and that no one was ever in danger ofbeing crushed by the hopper. Tr. 168, 172. He said that if he had seen someonein the fall zone, he would have stopped operation of the crane immediately. Tr.168. Cramer also testified that though he heard Inspector Hakala was on sitethat day, he never saw or spoke to her. Tr. 163. 

** **
    - PARTY ARGUMENTS

** **
    Secretary’s Argument

** **

The Secretary argues thatRespondent violated 30 C.F.R. § 56.16009 when employee Kyle McPartland failedto stay clear of a suspended load. Secretary’s Post-Hearing Brief (Sec’y Br.)at 6–7. The Secretary alleges that the miner on the catwalk behind the hopperthrew the tag line he was holding down to the Martin Marietta maintenanceworker on the ground. *Id*. at 3. Following this, the Martin Mariettaminer moved in to retrieve the tag line, and McPartland moved in to observe thehopper. *Id*.; Tr. 19, 46. Inspector Hakala observed the miners directlyunder the suspended load, and issued a verbal imminent danger order to plantmanager Abram Woodward, who shouted down to the miners to get out from underthe load. Tr. 20–21; Sec’y Br. at 3. The Secretary argues that both miners thenwent back into the fall zone and Hakala issued a second verbal order for themto move out from under the load. *Id*. After the second warning, they stayedout from under the load. Sec’y Br. at 3; Tr. 22–23. 

 

The Secretary argues that Hakalathen came down to the ground level and spoke with the miners as a group. Tr. 60–61;Sec’y Br. at 3–4. During that discussion, McPartland admitted to being two feetto the side of the hopper’s vertical fall line. Tr. 24; Sec’y Br. at 4. TheSecretary contends that the violation should remain designated as highnegligence and that any injury resulting from the violation would be fatal. Sec’yBr. at 7–8. 

 

**a.    ****Respondent’sArgument**

 

Respondent contends that thecitation should be vacated because miners were neither directly under the loadnor in the load’s fall zone at any time during the pick. Respondent’sPost-Hearing Brief (Resp. Br.) at 13. Respondent alleges that the minersinvolved in the pick operation stayed a safe distance from the hopper and movedaway as the load moved. *Id*. at 13; Tr. 168–69. If anyone had gone underthe load or into the fall zone, McPartland or Cramer would have stopped work. Resp.Br. at 12, 13; Tr. 117, 168.

 

Alternatively, Respondent argues thatif a violation occurred, “there was no reasonable likelihood that the crane’srigging would fail, or that any employee was otherwise in jeopardy of beinginjured by the load.” *Id*. at 14. Respondent therefore asserts that therewas no likelihood of injury and no negligence. *Id*. at 15.
    - DISPOSITION

** **
    Fact of Violation

** **

Inspector Hakala alleged inCitation No. 9374373 that Respondent violated 30 C.F.R. § 56.16009:

 

Two miners were observed under anapproximate 40,000 pound suspended load while attempting to remove the hopperfrom the Primary Plant. One miner was directing the load and the other minerwas trying to grab the suspension line from a third miner who was above theload. The hopper was suspended approximately 20–25 feet above the miners. This conditionexposes miners to fatal type injuries in the event of an accident. A verbalimminent danger order was issued to the mine's Plant Manager. Order # 9374371was issued in conjunction with this citation and citation #9374372.

 

Ex. S–3. 

 

The standard provides that “[p]ersonsshall stay clear of suspended loads.” 30 C.F.R. § 56.16009. Hakala determinedthat the violation was highly likely to result in injury, that the injury couldreasonably be expected to be fatal, and that the violation was significant andsubstantial (S&S) and affected two people. Ex. S–3. She determined theviolation was the result of high negligence. *Id*. 

 

It is undisputed that § 56.16009requires miners to not only stay out from directly under suspended loads, but toalso stay clear of the area that could be affected if a load were to fall. Sec’yBr. at 6; Resp. Br. at 10–12; *see Anaconda Co.*, 3 FMSHRC 299, 301 (Feb.1981) (considering substantively identical rule later recodified at § 56.16009per Recodification of Safety and Health Standards for Metal and Nonmetal Mines,50 Fed. Reg. 4048-01 (Jan. 29, 1985)). The regulation aims “to prevent personsfrom being hit by such loads through barring persons from locating within ahanging load’s possible arc or radius.” *Haines &**Kibblehouse,Inc.*, 30 FMSHRC 504, 517 (June 2008) (ALJ). 

 

The Commission has long held that“[i]n an enforcement action before the Commission, the Secretary bears theburden of proving any alleged violation.” *Jim Walter Res., Inc.*, 9FMSHRC 903, 907 (May 1987); *Wyoming Fuel Co.*, 14 FMSHRC 1282, 1294 (Aug.1992). The Commission has described the Secretary’s burden as:

 

The burden of showing something by a“preponderance of the evidence,” the most common standard in the civil law,simply requires the trier of fact “to believe that the existence of a fact ismore probable than its nonexistence.”

 

*RAG CumberlandRes. Corp.*, 22 FMSHRC 1066, 1070 (Sept. 2000); *Garden Creek PocahontasCo.*, 11 FMSHRC 2148, 2152 (Nov. 1989). For the reasons that follow, I find thatthe Secretary has presented sufficient evidence to show that McPartland wentinto the fall zone in violation of § 56.16009. However, I find that he did notgo directly under the suspended load.

During this inspection, Bragg’s cranelifted a 40,000 pound hopper from Martin Marietta’s primary plant and loweredit onto the ground as depicted in Exhibit 7, page 3. While observing the job, Hakalastood on an elevated catwalk near where the hopper was located before it waslifted off of the plant. Tr. 43; Ex. S–7, p. 2, 3. Consequently, the load movedaway from her as it was lowered onto the ground. By both Hakala’s andMcPartland’s estimates, Hakala was approximately 80 feet away from the minerswhen she allegedly observed them walk into the fall zone of the suspended load.Tr. 44, 108. Therefore, in addition to her less-than-ideal vantage point, shewas a significant distance from the miners on the ground.

 

At hearing, Hakala testifiednumerous times that the miners appeared to go directly under the suspendedhopper. Tr. 20, 21, 47, 69. However, she was inconsistent when asked aboutparticular details of the violation. When asked during cross-examinationwhether McPartland was in any danger at the time the critical photo in Exhibit7, page 2 was taken, she said that “it’s possible if this thing were to tipthat he would be *really close*to that fall zone where he’s at rightnow.” Tr. 45–46 (emphasis added). When later questioned by the court about thesame photo, Hakala said that the entire area inside of the pictured yellowbollards—within which McPartland is standing in the photo—was within the fallzone of the hopper with the hopper in its photographed location. Tr. 85–86. Onre-cross, Hakala was again asked if anyone was in the fall zone at the time thephoto was taken. Tr. 91. She responded that “he’s in a position where *hecould be as it continues to move*.” Tr. 92 (emphasis added). It is unclearwhether Hakala believed McPartland was really close to the fall zone,definitely in the fall zone, or possibly in the fall zone at the time the photowas taken. Moreover, she evaded and ultimately failed to answer Respondent’squestion about how high the load was at the precise time the violation occurred,instead only repeating her estimation of the height of the load at thebeginning of the pick. Tr. 81–82.

 

Given the above inconsistencies inHakala’s testimony and her sub-optimal viewpoint during the inspection, I find thatthe Secretary has failed to show by a preponderance of the evidence thatMcPartland was ever *directly under* the suspended load. 

 

Crucially, the Secretary failedboth at hearing and in his post-hearing brief to articulate the specific parametersof the fall zone in this case. I ascertain nevertheless that the fall zone ofthe suspended hopper was 10 feet around the load, particularly because Cramer,Bragg’s crane operator, testified that “a fall zone was identified” and thatpeople were told to stay 10 feet clear of the load. Tr. 174. 

 

In its correspondence to MSHA fourdays after the inspection, Bragg stated that “no employee was ever less than *6to 10*feet from the vertical fall line of the suspended hopper.” Ex. R–A,p. 1 (emphasis added). However, according to Hakala’s notes, written as sheinterviewed the miners following the pick, McPartland asserted that the minerswere never directly under the load but were approximately two feet from thevertical fall line. Ex. S­–4, p. 1; Tr. 26–28. Though the exact distancebetween McPartland and the vertical fall line at the moment of violation may beindeterminate, I find that sufficient evidence supports the finding that heviolated 30 C.F.R. § 56.16009 by entering the established fall zone of 10 feet.

 

Accordingly, the fact of violationis affirmed.
    Gravity

** **

Aviolation is significant and substantial (S&S), “if based upon theparticular 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.” *Cement Division, National Gypsum Co.*, 3FMSHRC 822, 825 (Apr. 1981).

 

Inorder to uphold a citation as S&S, the Commission has held that theSecretary of Labor must prove: 1) 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 in question will be of a reasonably serious nature. *MathiesCoal Co.*, 6 FMSHRC 1, 3–4 (Jan. 1984).

 

The Commission has held that thesecond element of the *Mathies* test addresses the extent to which aviolation contributes to a particular hazard. *Newtown Energy, Inc.*, 38FMSHRC 2033, 2037 (Aug. 2016). Analysis under the second step should thusinclude the identification of the hazard created by the violation and adetermination of the likelihood of the occurrence of the hazard that the citedstandard is intended to prevent. *Id*. at 2038. At the third step, theSecretary must prove there was a reasonable likelihood that the hazardcontributed to by the violation will cause an injury, not a reasonablelikelihood that the violation, itself, will cause injury. *West RidgeResources, Inc.*, 37 FMSHRC 1061, 1067 (May 2015) (ALJ), *citing**MusserEng'g, Inc.,* 32 FMSHRC 1257, 1280–81 (Oct. 2010. Evaluation of the fourfactors is made assuming continued normal mining operations. *U.S. SteelMining Co.*, 6 FMSHRC 1573, 1574 (July 1984).

 

Hakala explained at hearing thatshe designated this citation as S&S because “it was reasonable to believethat there was an injury of a fatal type that would occur.” Tr. 36. Shetestified that she designated the citation as highly likely because “it washighly likely that they could be crushed by this load *should it fall*.” Tr.34 (emphasis added). 

 

I have already determined thatBragg violated § 56.16009, a mandatory safety standard, because McPartlandentered the fall zone of the suspended hopper. The safety hazard posed by theviolation is that the suspended load could injure a miner on the ground if itwere to fall. I find, however, that it is unlikely this hazard would occur. Thoughan injury would be of a fatal nature if the load were to fall, Hakala’sdetermination that such an event was highly likely is incorrect. Bragg preparedcarefully and took the precautions necessary to ensure that the hopper would belifted and relocated without incident. *See* Tr.120–28; *see also*Ex.R–A. The load was unlikely to fall. 

 

Worth noting here, mine operatorMartin Marietta Materials, Inc. was issued a nearly identical citation for thisviolation. The citation was settled in Docket No. WEST 2019-0228. In hissettlement motion in that case, the Secretary stated that “[p]ersons were clearof (not under) the load.” Mot. For Settlement at 3, *Martin Marietta MaterialsInc.*,**WEST 2019-0228. The Secretary requested that the court modifythe gravity designations to reflect that injury was unlikely and that theviolation was not S&S. The court accepted the Secretary’s explanations forthe modifications and approved the settlement. Decision Approving Settlement, *MartinMarietta Materials Inc.*, WEST 2019-0228. Because the representations made inthat related operator case differ from the Secretary’s position in the presentcase, the Court instructed the parties to address whether the doctrine ofjudicial estoppel affects this proceeding.[7]Unpublished Order dated Nov. 12, 2019. After briefing the issue of judicialestoppel, the Secretary affirmatively chose not to brief how this violation wasS&S or highly likely to result in a fatality. Sec’y Br. at 5–6. Withoutinvoking judicial estoppel, I find that the settlement reached in WEST2019-0228 nevertheless lends notable support to the notion that this violationwas unlikely to result in injury and was not S&S.

 

Because injury was unlikely, thethird factor of the *Mathies*test is not met. I find that the this violationwas unlikely to result in injury, that the injury could reasonably be expectedto be fatal, that two people were affected, and that the violation was notS&S.

 
    Negligence

 

Under the Mine Act, operators areheld to a high standard of care, and “must 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). MSHA’s regulations define reckless disregard as conductwhich exhibits the absence of the slightest degree of care, high negligence asactual or constructive knowledge of the violative condition without mitigatingcircumstances; moderate negligence as actual or constructive knowledge of theviolative condition with mitigating circumstances; and low negligence as actualor constructive knowledge of the violative condition with considerablemitigating circumstances. 30 C.F.R. § 100.3: Table X.

 

Inspector Hakala designated thecitation as high negligence, explaining at hearing that McPartland, as the“individual in charge, had direct knowledge and he was involved in the imminentdanger and the violation itself.” Tr. 35. I find that the Secretary failed tocredibly establish that McPartland was in charge. McPartland credibly testifiedthat he did not have any supervisory responsibility. Tr. 96.

 

I find that Bragg’s negligence islow. McPartland should not have entered the fall zone, but based on thetestimony and evidence presented in this case, it is clear to me that to theextent he entered the fall zone, his presence there was momentary. Furthermore,Bragg took comprehensive safety precautions ahead of and during the pick. Forinstance, the miners involved in the job all took part in a safety meetingprior to the pick. Tr. 100–01. In its configuration that day, the crane wasauthorized to lift a load much heavier than the hopper. Ex. R–A, p. 7, *see*Resp.Br. at 6–7. The rigging utilized was also rated for far more weight than wasbeing lifted. Resp. Br. at 7.

 

            Given the considerable mitigating circumstances,I reduce Bragg’s negligence from high to low. 

 
    - PENALTY

 

            It iswell established that Commission administrative law judges have the authorityto assess civil penalties de novo for violations of the Mine Act. *SellersburgStone Company*, 5 FMSHRC 287, 291 (Mar. 1983). The Act requires that inassessing civil monetary penalties, the Commission ALJ shall consider the sixstatutory penalty criteria:

 

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

 

30 U.S.C. § 820(i).

 

            TheSecretary proposed a regularly assessed penalty of $2,615.00. Bragg has nohistory of previous violations. Bragg did not present evidence regarding itssize or argue that the size of the penalty was disproportionate. Further, Braggdid not contend at hearing or in its submissions in this case that the penaltyamount would affect the company’s ability to continue in business. As discussedin greater detail above, I find this violation to be non-S&S and unlikelyto result in a fatal injury. I reduce Bragg’s negligence from high to low inlight of the significant mitigating circumstances. No evidence was presented ongood faith in compliance. In light of these considerations, I assess a penaltyof **$200.00**.

 
    - ORDER

 

Respondentis hereby **ORDERED** to pay the Secretary of Labor the total sum of **$200.00**within 30 days of this order.[8]

 

 

 

 

 

/s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

Distribution: (Email[9])

 

Sonya P. Shao, U.S. Department of Labor, Office of theSolicitor, shao.sonya.p@dol.gov

 

Perry P. Poff, Donell, Melgoza & Scates LLP, perry@oshalaw.net

----

[1]In this decision, the joint stipulations, transcript, Secretary’sexhibits, and Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex.S–#,” and “Ex. R–#,” respectively.

[2] Kimberly Hakala has been anMSHA inspector for nearly eight years. Tr. 12. She previously worked forapproximately 10 years in various roles at her family’s gypsum limestoneoperation. Tr. 13.

[3]This 107(a) order, Order No. 9374371, was issued to Martin Marietta, not BraggCrane Service. It was withdrawn by the Secretary at hearing. 

[4]Kyle McPartland has worked for Bragg as a mechanic/oiler for 11 years. Tr. 95–96.

[5]Zachary Cramer has worked as a crane operator for Bragg since January 2016 andhas been a crane operator since August 2015. Tr. 156–58. Prior to becoming acrane operator, he worked as a certified rigger and signalman for three years. Tr.160.

[6]Dean Stone worked for Bragg Crane from 1977 to 1995 as a crane operator. Tr.202. After a hiatus from the industry, he returned to Bragg in 2009 and hasbeen a branch manager since. Tr. 203.

[7]Discussed by the Supreme Court in *New Hampshire v. Maine*, the doctrineof judicial estoppel prevents parties from taking a certain position in a legalproceeding and then assuming a contrary position in a later proceeding. 532U.S. 742, 749–50 (2001). Because the respondents are different in these cases,I will not invoke the doctrine. However, I have taken judicial notice of therepresentations made and settlement reached in the corresponding operator case.

[8]Please pay penalties electronically at Pay.Gov, a service of the U.S.Department of the Treasury, at https://www.pay.gov/public/form/start/67564508.Alternatively, send payment (check or money order) to: U.S. Department ofTreasury, Mine Safety and Health Administration

P.O. Box 790390, St. Louis, MO63179-0390. Please include Docket and A.C. Numbers. 

[9]For the foreseeable future, Federal Mine Safety and Health Review Commission(FMSHRC) notices, decisions, and orders will be sent only through electronicmail. Because FMSHRC will not be monitoring incoming physical mail or faxes,parties are encouraged to submit all filings through the agency’s electronicfiling system. If you are not able to file through our electronic filingsystem, please send an email copy and we will file it for you.