i 

February 2020 

TABLE OF CONTENTS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

02-03-20 GMS MINE REPAIR & 

MAINTENANCE, INC. 

PENN 2019-0126 Page 135

02-13-20 MARFORK COAL COMPANY, LLC WEVA 2020-0004 Page 147

02-21-20 RAIN FOR RENT WEST 2016-0730 Page 151

02-24-20 BOART LONGYEAR COMPANY WEST 2019-0297-M Page 160
ii 

Review was granted in the following cases during the month of February 2020: 

Marshall Justice v. Rockwell Mining, LLC, Docket No. WEVA 2018-48-D (Judge Paez, January 

6, 2020) 

Secretary of Labor v. Consol Pennsylvania Coal Company, LLC, Docket No. PENN 2019-0008 

(Judge Lewis, December 30, 2020) 

No case review was denied in the following during the month of February 2020. 
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

February 3, 2020 

DECISION AND ORDER

Appearances: Ryan C. Atkinson, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the Petitioner 

William C. Means, Esq., Andrew J. Ellis, Esq., GMS Mine Repair & 

Maintenance, Inc., Bruceton Mills, West Virginia, for the Respondent 

Before: Judge Rae 

I. INTRODUCTION

A. Statement of the Case

This case is before me upon a petition for assessment of civil penalty filed by the 

Secretary of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, as amended, (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue is one 

citation issued to Respondent GMS Mine Repair & Maintenance, Inc. (“GMS”), under Section 

104(a) of the Mine Act. 

A hearing was held in Morgantown, West Virginia, on January 14, 2020, at which time 

testimony was taken and documentary evidence was submitted. I have reviewed all of the 

evidence at length and have cited to the testimony, exhibits, and arguments I found critical to my 

analysis and ruling herein without including a detailed summary of the testimony given. 

After consideration of the evidence, I dismiss the Section 104(a) citation for the reasons 

set forth below. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

GMS MINE REPAIR & MAINTENANCE, 

INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. PENN 2019-0126 

A.C. No. 36-07230-493700

Mine: Bailey Mine 

42 FMSHRC Page 135
B. Stipulations 

1. Consol Energy (“Consol”) is the owner/operator of the Bailey Mine. At the time 

that the citation at issue in this proceeding was served, Respondent GMS was an independent 

contractor performing services at said mine and was therefore an “operator” at said mine as the 

term “operator” is defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d). 

2. Bailey Mine is a “mine” as defined in Section 3(h) of the Mine Act, 30 U.S.C. 

§ 802(h). 

3. Operations of GMS at the mine at which the citation was issued are subject to the 

jurisdiction of the Mine Act.

4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission (“FMSHRC”) and its designated Administrative Law Judges 

(“ALJ”) pursuant to Sections 105 and 113 of the Mine Act.

5. Payment of the total proposed penalty of $22,113.00 in this matter will not affect 

GMS’s ability to continue in business. 

6. The individual whose name appears in Block 22 of the citation in contest was 

acting in an official capacity and as an authorized representative of the Secretary when the 

citation was issued, provided however that this stipulation should not be construed as an 

admission by GMS of culpability regarding the subject matter of said citation. 

 

7. The Citation contained in Docket No. PENN 2019-0126 was issued and served by 

a representative of the Secretary upon an agent of GMS at the date, time, and place stated in the 

citation. 

8. Exhibit “A” attached to the Secretary’s Petition in Docket No. PENN 2019-0126 

contains an authentic copy of Citation No. 9074949 with all modifications or abatements, if any. 

9. Although the parties disagree as to whether the application of 30 C.F.R. § 75.1403 

is properly limited to hoists or mantrips, the parties stipulate that no hoist or mantrip (as those 

terms are used in 30 C.F.R. § 75, Subpart O) was involved in the accident which gave rise to this 

case. 

Jt. Ex. 1.1

 

1

 In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The 

Secretary’s exhibits are numbered Ex. P-1 to P-8. In addition, the Secretary submitted the 

Respondent’s assessed violation history report as Ex. P-17. The Respondent did not file any 

exhibits. The joint stipulations are referred to as Jt. Ex. 1 and Jt. Ex. 2. 

42 FMSHRC Page 136
The parties have also submitted the additional joint stipulations: 

1. The service contract between GMS and Consol (the owner-operator of Bailey 

Mine) contains provisions which contractually obligate GMS to adhere to mandatory safety and 

health standards. 

2. Notices to provide safeguard are not expressly mentioned within the text of the 

GMS-Consol contract; however, GMS conceded that it is not manifestly unreasonable to 

construe the aforementioned contractual obligation as including a duty of GMS to Consol to be 

familiar with directives laid out in those notices to provide safeguard which the Mine Safety and 

Health Administration (“MSHA”) has served on Consol at the mine(s) where GMS performs 

services for Consol and, to the extent that said notices are applicable to GMS’s assigned work, to 

adhere to those directives. 

3. GMS has received from Consol a summary of thirty-five notices to provide 

safeguard which MSHA served upon Consol at the Bailey Mine from 1993 to present, one of 

which is Notice to Provide Safeguard No. 7068632 (“Safeguard No. 7068632”) at issue in the 

case at bar. 

4. During its site-specific safety training and/or its annual refresher safety training of 

GMS personnel who perform services at Bailey Mine, GMS does include discussions of notices 

to provide safeguard. 

5. On August 7, 2018, at the Bailey Mine, GMS personnel were attempting to use a 

one-man-operated piece of equipment known as a “mule” (which is neither a mantrip nor a hoist 

within the meaning of 30 C.F.R. § 75, Subpart O) to move a longwall shield a short distance 

away from the mine face. 

6. The mule got stuck in place, whereupon GMS personnel attached a cable to an 

anchor point in the mine roof in an attempt to get the equipment unstuck. 

7. A hook clevis on the mule—to which the cable was attached—broke, whereupon 

the hook traveled 33 feet through the air and struck a miner. 

8. Upon investigating the foregoing accident, MSHA issued three citations to GMS. 

9. One of the three citations alleged that the condition of the hook clevis had 

deteriorated and therefore, GMS had operated a piece of equipment which was in unsafe 

condition. During and/or in conjunction with a citation conference, GMS opined that the 

deteriorated part of the hook clevis was blocked from view by other parts of the equipment. 

Nevertheless, GMS accepted responsibility, did not further contest the citation, and paid the 

assessment for the same. Accordingly, that issue is resolved and closed. 

10. Another of the three citations alleged that GMS had violated the roof control plan 

by attaching a cable to part of the roof control system. During and/or in conjunction with a 

citation conference, GMS opined that the anchor to which the cable was attached was a 

supplemental roof bolt in excess of the roof-bolting requirements. Nevertheless, GMS accepted 

42 FMSHRC Page 137
responsibility, did not further contest the citation, and paid the assessment for the same. 

Accordingly, that issue is resolved and closed. 

11. Another of the three citations, i.e., the one citation now at issue, alleges that GMS 

violated a notice to provide safeguard. The specific notice to provide safeguard is not mentioned 

in the body of the citation. The specific notice to provide safeguard has since been identified as 

Safeguard No. 7068632. 

12. Within the Mine Act’s definition of the term “operator,” GMS—as a provider of 

services at Bailey Mine—is “an operator” at Bailey Mine separate and distinct from owneroperator Consol. 

13. It is undisputed that no authorized representative of the Secretary has ever advised 

GMS in writing of Safeguard No. 7068632, nor did the Secretary ever fix a time within which 

operator GMS could have addressed the content or validity of that specific safeguard notice 

before the Secretary’s representative served GMS with the one citation which is still at issue in 

this matter. 

Jt. Ex. 2. 

 

42 FMSHRC Page 138
II. BACKGROUND 

On August 1, 2018, an accident occurred at the Bailey Mine—an underground coal mine 

in Pennsylvania that is owned and operated by Consol. Tr. 31; Jt. Ex. 1, 2. Subsequently, MSHA 

conducted an investigation of the circumstances surrounding the accident. Tr. 31. At the time of 

the accident and investigation, GMS was performing services at the Bailey Mine as an 

independent contractor. Jt. Ex. 1. 

After the accident investigation concluded on August 7, 2018, MSHA inspector Robert 

Revi2 issued Citation No. 90749493 to GMS on the basis that GMS violated 30 C.F.R. 

§ 75.14034 by failing to adhere to the mandate of Safeguard No. 7068632. Ex. P-1; Jt. Ex. 2. 

Safeguard No. 7068632, which was issued to Consol on February 13, 2006, states: 

On September 22, 2005, employees were moving a belt drive 

motor into location for the new 9-H section belt. They were pulling 

the drive motor into place with a 3/4 inch cable laced through two 

sheave wheels . . . . The chain which was attached to the sheave at 

the flat car broke, and a link from the chain flew into the track 

chute and struck the victim in the face causing severe facial 

injuries. The victim was approximately 25 to 30 feet away from the 

chain when it broke. 

2

 Revi has been an MSHA employee for eight years and serves as a certified mine 

inspector. Tr. 23. Prior to his employment with MSHA, Revi was employed by Consol for ten 

years, was employed by Emerald Mine, and was employed by GMS. Tr. 24. Revi has received 

training at the National Mine Health and Safety Academy in Beckley, West Virginia—including 

accident investigation training—and holds various licenses and certifications related to mining. 

Tr. 24. In total, Revi has approximately 20 years of coal mining experience. Tr. 24-25. 

3

 The narrative portion of Citation No. 9074949 states: 

An accident occurred at Bailey Mine in the 6J Longwall tear down 

between the 2/3 crosscut at spad 1+75, area on August 1st, 2018 

injuring one miner. The Pettito Electric mule was being used to 

recover shield from the longwall face when it got stuck in the 

number 3 intersection at spad # 1+75. In the process of attempting 

to free the mule, the hook and hook clevis broke. The hook and 

hook clevis was propelled a distance of 33 feet striking a miner in 

the head. 

Ex. P-1. 

4

 Mirroring Section 314(b) of the Mine Act, this regulation states “[o]ther safeguards 

adequate . . . to minimize hazards with respect to transportation of men and materials shall be 

provided.” 30 C.F.R. § 75.1403; see also 30 U.S.C. § 874(b). 

42 FMSHRC Page 139
This is a notice to provide the following safeguard: 

When using chains and or cables to move equipment into location 

all workers are to be located in a position so that they will not be 

injured should any portion of the chain or cable fail. 

Ex. P-4. 

III. LEGAL PRINCIPLES 

An operator is strictly liable for Mine Act violations. Nally & Hamilton Enter., 

38 FMSHRC 1644, 1650 (July 2016) (citing Sec’y of Labor v. Nat’l Cement Co. of Cal., 

573 F.3d 788, 795 (D.C. Cir. 2009)). The Secretary bears the burden of proving any alleged 

violation “by a preponderance of the credible evidence.” In re: Contests of Respirable Dust 

Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. 

Keystone Coal Mining Corp., 153 F.3d 1096 (D.C. Cir. 1998) (citing Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989)). 

Section 314(b) of the Mine Act provides for safeguards that “inform[] the mine operator 

about conduct that is mandated or prohibited . . . involving transportation of miners and 

materials.” Pocahontas Coal Co., LLC, 38 FMSHRC 157, 157 (Feb. 2016). The Secretary 

effectuates Section 314(b) “by authorizing inspectors to issue safeguards on a mine-by-mine 

basis.” Oak Grove Res., LLC, 37 FMSHRC 2687, 2688 (Dec. 2015); see also Big Ridge, Inc., 

37 FMSHRC 213, 214 n.4 (Feb. 2015) (noting that safeguards “are[,] in effect, mandatory safety 

standards issued on a mine-by-mine basis” (citation omitted)). Inspectors, as representatives of 

the Secretary, issue the safeguards in writing to the operator, and must also “indicate[] a time by 

which the operator must provide and subsequently maintain that safeguard.” Oak Grove Res., 

LLC, 37 FMSHRC at 2688 (citing 30 C.F.R. § 75.1403-1(b)). An inspector may then issue a 

citation to that operator for safeguard noncompliance. Oak Grove Res., LLC, 37 FMSHRC at 

2688 (citing Wolf Run Mining Co. v. FMSHRC, 659 F.3d 1197, 1204 (D.C. Cir. 2011)). 

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

There are three issues that must be addressed in this matter: (1) whether an independent 

contractor is bound by safeguards issued to the owner / operator of a mine; (2) whether 

Safeguard No. 7068632 is facially valid; and (3) whether Safeguard No. 7068632 applies to 

GMS based on the instant facts. For the reasons set forth below, the answer to each question is 

“no,” and, therefore, Citation No. 9074949 must be vacated. 

A. Whether an Independent Contractor Is Bound by Safeguards Issued to the 

Owner / Operator of a Mine

“When ‘a violation of a regulation subjects private parties to criminal or civil sanctions, a 

regulation cannot be construed to mean what an agency intended but did not adequately 

express.”’ Energy West Mining Co., 17 FMSHRC 1313, 1317-18 (Aug. 1995) (quoting Phelps 

Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982)). The language of Section 

42 FMSHRC Page 140
75.1403-1(b) clearly states that “the Secretary shall in writing advise the operator of a specific 

safeguard which is required pursuant to [Section] 75.1403 and shall fix a time in which the 

operator shall provide and thereafter maintain such safeguard.” 30 C.F.R. § 75.1403-1(b) 

(emphasis added). It is undisputed that the Secretary neither “in writing advise[d] [GMS] . . . of a 

specific safeguard,” nor fixed a time for compliance with the safeguard. Id.; Jt. Ex. 2. 

The Secretary argued that “mine-by-mine basis” means safeguards are perpetually 

enforceable against all operators present at the mine property, not just against the operator that 

was served with the safeguard in writing. Tr. 14, 27-28. Further, counsel for the Secretary agreed 

that, under this interpretation, once a safeguard is issued to an operator, that safeguard could be 

in effect and enforceable against all operators present at the mine for 20, 30, 40, 50 years, or 

even forever. Tr. 14-15. However, the Secretary admitted that there is no legal precedent—case 

law, legislative history, or prior application of this interpretation—to support such a position. Tr. 

15-16. Furthermore, the Commission has never been confronted with such an interpretation. 

I find that the Secretary’s interpretation is incorrect. The Commission has explained that 

issuing safeguards on a “mine-by-mine” basis means only that the safeguards need to “address[] 

a specific transportation hazard actually determined by an inspector to be present and in need of 

correction at the mine in question.” Southern Ohio Coal Co., 14 FMSHRC 1, 9 (Jan. 1992) 

(“SOCCO II”). An interpretation that permanently extends the scope of “mine-by-mine” to all 

operators at a mine site goes against the express language of the regulation and has no 

demonstrable support. Section 75.1403-1(b) clearly indicates that the Secretary “shall in writing 

advise the operator” of the safeguard, and says nothing about the enforcement of safeguards 

against other distinct and separate operators that were not advised in writing by the Secretary. 

30 C.F.R. § 75.1403-1(b) (emphasis added); see also BethEnergy Mines, Inc., 14 FMSHRC 17, 

23-24 (Jan. 1992) (“Section 75.1403-1(b) makes clear that the safeguard criteria are not binding 

on any particular operator unless, and until, that operator is given notice, in a written safeguard 

from an authorized representative of the Secretary.” (emphasis added)); SOCCO II, 14 FMSHRC 

at 7. 

In addition, Inspector Revi testified that, in his experience, mine inspectors typically 

issue safeguards after an operator has received several violations of the same type and the 

inspector puts the operator on notice. Tr. 26-27. Such activity by an operator would then justify 

the issuance of a safeguard and, subsequently, validate the issuance of citations for violating that 

safeguard—should that violative condition or practice continue. Tr. 27. Inspector Revi’s 

testimony underscores the fact that a specific operator is to be put on notice and bound by a 

specific safeguard, not any independent contractor on the mine property at any time after the 

safeguard is issued. 

The Secretary also argued that the contractual agreement between GMS and Consol 

obligated GMS to adhere to the mandate of Safeguard No. 7068632 because that agreement 

required GMS to comply with the Mine Act. Tr. 9, 48; Ex. P-2. It is true that GMS was 

contractually required to “comply with the provisions of the [Mine Act] and the [r]ules and 

[r]egulations applicable thereto,” and it is also true that GMS admitted it was aware of all 

safeguards at Bailey Mine (including Safeguard No. 7068632). Ex. P-2 at 6; Jt. Ex. 2. However, 

awareness is not equivalent to the express requirement in Section 75.1403-1(b) that the Secretary 

42 FMSHRC Page 141
provide written, individualized notice to GMS. A private employment contract between a mine 

owner and an independent contractor does not authorize the Secretary to enforce a safeguard that 

was issued to the mine owner and is otherwise unenforceable against the contractor. 

In contrast to the Secretary’s arguments, GMS argued that the Secretary’s interpretation 

runs counter to the principles of due process because GMS lacked notice that the Secretary 

would enforce Safeguard No. 7068632 without first advising GMS of said safeguard in writing. 

Tr. 19, 50. Although I decline to address the constitutional argument raised by GMS, some 

further analysis is warranted. First, it is important to note that Safeguard No. 7068632 is not a 

regulation that has gone through the rulemaking process; it is an entirely different exercise of 

authority by the Secretary. See Pocahontas Coal Co., LLC, 38 FMSHRC at 165 (“Congress 

chose not to subject safeguard notices to the notice-and-comment rulemaking required for 

mandatory standards.” (citing Wolf Run, 659 F.3d at 1202-03)); see also Oak Grove Res., LLC, 

35 FMSHRC 2009, 2011-12 (July 2013). Here, GMS is a separate and distinct legal entity from 

Consol, the operator that received Safeguard No. 7068632 in writing. Jt. Ex. 2. Furthermore, 

Safeguard No. 7068632 was issued more than 10 years prior to the issuance of Citation No. 

9074949, and GMS had no official notice or opportunity to comply with that safeguard before 

being issued a citation.5

 Ex. P-4. 

Neither the Act nor the safeguard regulation by its language includes any other entities 

but the operator to which the safeguard was issued as being bound by that safeguard. The 

Secretary’s interpretation, a new one at that, would lead to absurd results should each safeguard 

bind any and all independent contractors, subcontractors, and their successors in interest 

indefinitely. Therefore, the SOL’s new interpretation is not to be afforded deference here. The 

language of Section 75.1403-1(b) is not ambiguous. Even if Section 75.1403-1(b) was 

ambiguous in its coverage, the Secretary’s position would still fail as an unreasonable 

interpretation of that regulation. I find that the Secretary’s position—which the Secretary 

admitted is unsupported by precedent and has never been advanced before—is not the 

authoritative or official position of the agency, but instead a convenient litigation position that 

creates unfair surprise to GMS. “Congress, when first enacting a statute, assigns rulemaking 

power to an agency and thus authorizes it to fill out the statutory scheme,” and “when new issues 

demanding new policy calls come up within that scheme, Congress presumably wants the same 

agency, rather than any court, to take the laboring oar.” See Kisor v. Wilkie, 139 S.Ct. 2400, 2413 

(2019). The Commission and its judges have on numerous occasions stated in unequivocal 

language that the Secretary should engage in the proper rulemaking procedures to regulate the 

transportation of miners and materials in underground coal mines. See, e.g., Wolf Run, 659 F.3d 

at 1203 (citing SOCCO II, 14 FMSHRC at 16); cf. Tr. 46 (describing the threat of a chain or 

cable breaking as a possibility “at any mine or any industry”). 

In sum, only the operator that was advised of the safeguard in writing may be held 

responsible for implementing the remedial measures prescribed by that safeguard or penalized 

for failing to do so. Therefore, Safeguard No. 7068632 is not applicable to GMS. 

5

 Again, Inspector Revi’s testimony that safeguards are typically issued after an operator 

has committed several violations of the same type—and the operator is put on notice before the 

safeguard is issued and enforced—supports GMS’s argument that it had no fair notice of, or 

chance to comply with, Safeguard No. 7068632. Tr. 26-27. 

42 FMSHRC Page 142
B. Whether Safeguard No. 7068632 Is Facially Valid

In addition to Safeguard No. 7068632 not applying to GMS because GMS was never 

advised in writing of that safeguard, Safeguard No. 7068632 is also facially invalid. 

To be valid, a safeguard must identify a hazardous condition and specify a remedy. See 

Oak Grove Res., LLC, 38 FMSHRC 1273, 1278 (June 2016); see also Am. Coal Co., 

34 FMSHRC 1963, 1969 (Aug. 2012). The safeguard must articulate the hazard and “conduct 

required of the operator to remedy such hazard” with specificity. Oak Grove Res., LLC, 

35 FMSHRC at 2012 (citing Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) 

(“SOCCO I”)). Because the Secretary issues safeguards “without resort to the normally required 

rulemaking process,” it is essential that “a narrow construction of the terms of the safeguard and 

its intended reach” is employed.6 Cyprus Emerald Res. Corp., 20 FMSHRC 790, 808 (Aug. 

1998) (quoting SOCCO I, 7 FMSHRC at 512 (internal quotation marks omitted)). This is 

necessary to balance the Secretary’s “unique authority to require a safeguard” and the operator’s 

right to fair notice of the conduct required under the safeguard. BethEnergy Mines, Inc., 14 

FMSHRC at 25. Safeguard No. 7068632 purports to specify the hazard of miners being injured 

“should any portion of a chain or cable fail,” and the specific remedy that miners “be located in a 

position so that they will not be injured.” Ex. P-4. However, I find that Safeguard No. 7068632 is 

facially invalid for three separate reasons. 

First, Safeguard No. 7068632 is invalid because the hazard it purports to address—the 

danger of a chain or cable breaking—is not based on the “consideration of the specific conditions 

at the particular mine.” Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1607 (Aug. 1994) 

(citing SOCCO II, 14 FMSHRC at 9) (internal quotation marks omitted). “The hazard posed by 

the use of unsafe equipment,” such as a broken chain or cable, “does not arise from conditions 

specific to particular mines and thus is not properly addressed by issuance of a safeguard.” Id.

But see Oak Grove Res., LLC, 35 FMSHRC at 2013 (citing SOCCO II, 14 FMSHRC at 8) 

(reiterating that a safeguard is not per se invalid “if it addresses conditions that exist in a 

significant number of mines” (internal quotation marks omitted)). However, this condition—

hoisting men or materials—applies to every mine in the entire country, which is entirely too 

broad to be the subject of a safeguard. The following exchange between GMS counsel and 

Inspector Revi at the hearing demonstrates why the hazard that Safeguard No. 7068632 attempts 

to address is too broad to be covered by a safeguard: 

GMS Counsel: Okay. The condition that is described in the 

safeguard about using chains or cables to 

move equipment, does that present a hazard 

wherever it may be found? 

6

 The Commission has reaffirmed this principle from SOCCO I multiple times. See Black 

Beauty Coal Co., 38 FMSHRC 1, 2 (Jan. 2016); see also Oak Grove Res., LLC, 37 FMSHRC at 

2690; Cyprus Cumberland Res. Corp., 19 FMSHRC 1781, 1785 (Nov. 1997); United States Steel 

Mining Co., Inc., 15 FMSHRC 2445, 2447 (Dec. 1993); Green River Coal Co., Inc., 14 

FMSHRC 43, 48 (Jan. 1992). 

42 FMSHRC Page 143
Inspector Revi: If there’s stored energy in that cable or 

chain, yes. Absolutely. Anything that has 

tension on it, if it breaks, it’s going to fly 

somewhere, but nobody knows where. 

GMS Counsel: And that’s true at Bailey [Mine]. Right? 

Inspector Revi: That's true at any mine or any industry. 

GMS Counsel: At any mine anywhere, that’s true? 

Inspector Revi: What, that this could happen? 

GMS Counsel: Yes. 

Inspector Revi: Absolutely. 

Tr. 45-46. 

Second, Safeguard No. 7068632 is invalid because it contains a nonspecific remedy that 

does not adequately address how the operator must adhere to its mandate. Cf. Am. Coal Co., 

34 FMSHRC at 1979 n.5 (finding that a safeguard requiring equipment be mounted “in a manner 

that provides ‘maximum’ clearance” was insufficiently specific and facially invalid). Inspector 

Revi’s testimony makes clear that Safeguard No. 7068632 does not provide a specific remedy, as 

required by law. Although no exact distance was specified in Safeguard No. 7068632, the 

remedial “safe” distance that miners were to be located should have been greater than the 25 to 

30 feet that the injured miner was standing during the 2006 incident. Tr. 45; Ex. P-4. In the 

instant matter however, the miner that was struck was standing 33 feet away. Tr. 44-45; Ex. P-1. 

Again, even Inspector Revi testified that he was unsure what distance would have been 

appropriate under the direction of the safeguard and in fact stated: “I guess with hindsight . . . 

would 40 feet be far enough? I don’t know.” Tr. 45. 

Third, Safeguard No. 7068632 is facially invalid because it never fixed a time for 

compliance. Cyprus Emerald Res. Corp., 20 FMSHRC at 808 (quoting SOCCO II, 14 FMSHRC 

at 7) (stating that “a safeguard ‘may be enforced at a mine only after the operator is advised in 

writing that a specific safeguard will be required as of a specified date’” (emphasis added)); Jt. 

Ex. 2. 

Consequently, Safeguard No. 7068632 is facially invalid because it is neither sufficiently 

specific as to the hazard identified, nor the specific remedy to be undertaken. 

C. Whether Safeguard No. 7068632 Is Applicable to GMS on the Instant Facts

Finally, in addition to the conclusions set forth above, the specific hazard envisioned by 

Safeguard No. 7068632—and mandatory remedial directive—is not applicable to GMS under the 

factual circumstances described in Citation No. 9074949.

42 FMSHRC Page 144
A citation that alleges a violation of a safeguard “should be vacated if the conditions 

‘differ fundamentally in nature, cause and remedy’ from those in the underlying safeguard, such 

that the operator lacked notice that the cited conduct was prohibited.” Oak Grove Res., LLC, 38 

FMSHRC at 1278 (quoting BethEnergy Mines, Inc., 15 FMSHRC 981, 986 (June 1993)); see 

also SOCCO I, 7 FMSHRC at 512-13. Further, safeguards “must be strictly construed in 

determining whether a violation has occurred.” Cyprus Cumberland Res. Corp., 19 FMSHRC at 

1785 (citing SOCCO I, 7 FMSHRC at 512). 

Here, the conditions cited in Citation No. 9074949 differ fundamentally from those in 

Safeguard No. 7068632. The equipment that failed here, a hook and hook clevis, was part of the 

20-ton Pettito Mule, not a portion of a separate “chain or cable” that was expressly envisioned by 

Safeguard No. 7068632. Tr. 8, 34, 42, 44, 53; Exs. P-1, P-4; Jt. Ex. 2. Inspector Revi expressly 

testified that no chain or cable was used during the August 2018 accident at Bailey Mine. Tr. 44. 

Further, Inspector Revi testified that the root cause of the hook failure was the deterioration of 

the mine road where the Pettito Mule was stuck. Tr. 8, 34, 37, 39-40. Nothing in Safeguard No. 

7068632 applies in any way to the maintenance of the mine road or to poor road conditions. 

Finally, the parties stipulated that neither a mantrip nor a hoist was involved in this accident. Jt. 

Ex. 2. Therefore, even if Safeguard No. 7068632 was otherwise valid and applicable to GMS, the 

facts do not support a finding that GMS violated Safeguard No. 7068632—if the safeguard is 

strictly construed. 

V. CONCLUSION 

In sum, because Safeguard No. 7068632 (1) is facially invalid, (2) differs fundamentally 

from the instant circumstances, and (3) is unenforceable against GMS, Citation No. 9074949 

must be vacated. 

ORDER 

Consistent with this Decision, IT IS ORDERED that Citation No. 9074949 is VACATED. 

Accordingly, these proceedings are DISMISSED. 

 /s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

 

42 FMSHRC Page 145
Distribution: 

Ryan Atkinson, Office of the Solicitor, U.S. Department of Labor, 170 S. Independence Mall 

West, Suite 630E, Philadelphia, PA 19106 

William C. Means, Andrew J. Ellis, GMS Mine Repair & Maintenance, Inc., 224 Moyers Road, 

Bruceton Mills, WV 26525 

/smp 

42 FMSHRC Page 146
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

February 13, 2020 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

MARFORK COAL COMPANY, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2020-0004 

A.C. No. 46-09091-499508 

Mine: Horse Creek Eagle 

ORDER ACCEPTING APPEARANCE 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY

Before: Judge McCarthy 

 This case is before the undersigned upon a Petition for the Assessment of Civil Penalty 

under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

 The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a 

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be accepted 

to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 1994). 

 The CLR has filed a motion to approve settlement proposing a reduction in the penalties 

from $29,612.00 to $24,842.00. Citation No. 9162703 remains unchanged, but the CLR justifies 

the reduction in penalty by stating there is a legitimate factual and legal dispute regarding gravity 

and negligence. The CLR has stated that Citation No. 9243753 has been vacated. The Secretary 

claims the unreviewable discretion to vacate a citation under RBK Constr. Inc., 15 FMSHRC 

2099 (Oct. 1993). The CLR also requests that Citation No. 9167505 be modified to reduce the 

likelihood of injury or illness from reasonably likely to unlikely and to remove the designation of 

significant and substantial. 

 

42 FMSHRC Page 147
 Pursuant to 29 C.F.R. § 2700.1(f) and Federal Rule of Civil Procedure 12(f), the 

undersigned strikes paragraph 3(B) from the Secretary’s Motion. This paragraph states 

definitively that the Secretary’s discretion to vacate a citation at any time—including after the 

proposed penalty has been contested—is unreviewable. However, section 110(k) requires that 

any contested penalty cannot be compromised, mitigated, or settled without the approval of the 

Commission. 

In RBK Construction, the Commission relied on the Supreme Court’s ruling in Cuyahoga 

Valley Ry. Co. v. United Transport Union, 474 U.S. 3, 7-8 (1985), and ruled that the Secretary 

has the unreviewable discretion to vacate citations. However, Cuyahoga Valley concerns the 

Occupation and Safety Health Act, a law that lacks any requirements similar to those in section 

110(k). See generally 29 U.S.C. § 651 et seq. Furthermore, although the Commission in RBK 

Construction summarized the Secretary’s argument that section 110(k) only applies to 

settlements of penalties and not to vacations of citations or orders, the Commission never 

addressed that argument or provided any basis for a ruling that the reduction of a contested 

proposed penalty to zero does not qualify as compromising, mitigating, or settling a contested 

proposed penalty under section 110(k). 

Additionally, the Commission did not explain in RBK Construction how—if the 

Secretary has the unreviewable discretion to eliminate proposed penalties through vacating 

citations and orders—the Commission can uphold the intent of Congress that section 110(k) act 

to “assure that the abuses involved in the unwarranted lowering of penalties as a result of off-therecord negotiations are avoided” and “that the Commission and the Courts will assure the public 

interest is adequately protected before any reduction in penalties.” The American Coal Co., 

38 FMSHRC 1972, 1976 (Aug. 2016) (quoting Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 632 (1978)) (emphasis removed). It would appear that the 

unreviewable discretion to eliminate citations, orders, and entire proposed penalties holds the 

potential to hide the very abuses Congress intended the Mine Act to address. 

Given the requirements in section 110(k) and the fact that the Commission did not fully 

address them in RBK Construction, the undersigned considers this case law questionable and will 

not rely on it to evaluate this Motion. 

 Nonetheless, the undersigned considered the enforcement value of the settlement as a 

whole when evaluating the Secretary’s vacation of Citation No. 9243753. 

 The undersigned considered, absent the paragraph struck above, the representations and 

documentation submitted in this case, and the undersigned concludes that the proffered 

settlement is fair, reasonable, appropriate under the facts, and protects the public interest under 

The American Coal Co., 38 FMSHRC at 1976, and is appropriate under the criteria set forth in 

section 110(i) of the Act. The settlement amounts are as follows: 

42 FMSHRC Page 148
WHEREFORE, the motion for approval of settlement is GRANTED. 

 It is ORDERED that Citation No. 9167505 be MODIFIED to reduce the likelihood of 

injury or illness from reasonably likely to unlikely and to remove the designation of significant 

and substantial. 

It is further ORDERED that the operator pay a total penalty of $24,842.00 within thirty 

days of this order.1

 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

 

1

 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

Citation No. Assessment Settlement

9162702 $2,172.00 $2,172.00

9162703 $4,464.00 $2,665.00

9162704 $2,172.00 $2,172.00

9161855 $604.00 $604.00

9161861 $977.00 $977.00

9167495 $3,241.00 $3,241.00

9161869 $1,577.00 $1,577.00

9167500 $3,511.00 $3,511.00

9167501 $3,511.00 $3,511.00

9167502 $1,852.00 $1,852.00

9161874 $1,852.00 $1,852.00

9243753 $168.00 $0.00

9167505 $3,511.00 $708.00

$29,612.00 $24,842.00

42 FMSHRC Page 149
Distribution: 

Elmer J. Blair, II 

U.S. Department of Labor 

MSHA 

100 Bluestone Road 

Mt. Hope, WV 25880 

Eric L. Silkwood 

Marfork Coal Company, Inc. 

300 Running Right Way 

P.O. Box 261 

Julian, WV 25529 

/ztb 

42 FMSHRC Page 150
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

 

February 21, 2020 

 

DECISION AND ORDER

Appearances: Andrew R. Tardiff, Esq., Office of the Solicitor, U.S. Department of 

Labor, Arlington, Virginia, for the Petitioner 

 Bryon J. Walker, Esq., Rose Law Firm, Little Rock, Arkansas, for the 

Respondent 

Before: Judge Rae 

I. INTRODUCTION 

A. Statement of the Case 

This case is before me upon a petition for assessment of civil penalty filed by the 

Secretary of Labor (“the Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, as amended, (“the Mine Act”), 30 U.S.C. § 815(d).1

 At issue are two 

citations issued to Respondent Western Oilfields Supply Company, doing business as Rain for 

Rent (“RFR”), under Section 104(a) of the Mine Act. 

A hearing was held in San Jose, California on November 26, 2019, at which time 

testimony was taken and documentary evidence was submitted. The parties filed post-hearing 

briefs on January 28, 2020. I have reviewed all of the evidence at length and have cited to the 

testimony, exhibits, and arguments I found critical to my analysis and ruling herein without 

including a detailed summary of the testimony given by each witness. After consideration of the 

1

 This case was previously before the Commission. Rain for Rent, 40 FMSHRC 976 (July 

2018), aff’g 39 FMSHRC 1448 (ALJ 2017). The United States Court of Appeals for the District 

of Columbia Circuit remanded this case in light of the Supreme Court’s decision in Lucia v. SEC, 

138 U.S. 2044 (2018). See W. Oilfields Supply Co. v. FMSHRC, No. 18-1269 (D.C. Cir. Mar. 22, 

2019). The Commission subsequently remanded this case to the undersigned for a hearing and 

decision on the merits. 41 FMSHRC 243 (May 2019). 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

RAIN FOR RENT, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2016-0730 

A.C. No. 04-01891-418057 

Mine: Eliot Plant 

42 FMSHRC Page 151
evidence and observation of the witnesses and assessment of their credibility, I uphold the 

Section 104(a) citations as written for the reasons set forth below. 

B. Stipulations 

The parties have stipulated to the following facts: 

 

1. RFR provides temporary liquid handling solutions, including pumps, tanks, 

filtration, and spill containment to different industries, including mine operators in the United 

States, Canada, and the United Kingdom. 

2. On the date of the subject citations, RFR provided services as an independent 

contractor to CEMEX Construction Materials Pacific LLC, which operates the Eliot Plant, Mine 

Safety and Health Administration (“MSHA”) I.D. No. 04-01891, in Alameda County, California. 

3. The case is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission (“FMSHRC”) and the assigned Administrative Law Judge (“ALJ”). 

4. The MSHA inspector was acting in his official capacity when issuing the citations. 

5. The citations were properly served by a duly authorized representative on the date 

and place stated therein, and may be admitted into evidence for the purpose of establishing their 

issuance, and not for the truthfulness or relevance of any statements asserted therein. 

6. RFR had no history of MSHA violations as of the date the citations were issued. 

7. The air compressor referenced in Citation No. 8785486 was a Quincy model, with 

a 30 gallon air receiver tank, which was mounted on the Ford F-550 company service truck 

(company # 2102). 

8. During the subject inspection, RFR did not produce to the MSHA inspector, in 

response to the MSHA inspector’s request, any documents showing that the air compressor 

referenced in Citation No. 8785486 had been inspected by an inspector holding a valid National 

Board of Boiler and Pressure Vessel Inspectors (“National Board” or “Board”) Commission and 

in accordance with the applicable chapters of the National Board Inspection Code (“NBIC”). 

9. 30 C.F.R. § 56.4402 does not require any specific labeling on a safety can, other 

than that the labeling “indicate the contents.” 

10. MSHA has neither published any guidance, nor promulgated any rules or 

regulations that defined “labeled” or “indicate,” as those terms are used in 30 C.F.R. § 56.4402. 

11. There is no requirement under the Mine Act that labeling of a safety can be in a 

specific location on the can, in a specific size or color, or be in a specific language. 

42 FMSHRC Page 152
12. The safety can which is the basis for Citation No. 8785487 was red in color at the 

time of the subject inspection. 

13. RFR and its representatives have at all times cooperated with the investigation. 

14. RFR demonstrated good faith in addressing the conditions in the subject citations. 

15. The alleged violation in Citation No. 8785487 was terminated immediately. 

16. The alleged violation in Citation No. 8785486 has been terminated. 

Jt. Ex. 1.2

II. BACKGROUND 

Rain for Rent is a global contractor supplying liquid handling solutions to various 

industries. It was providing services on the Eliot Mine sand and gravel mine property on July 6, 

2016 when MSHA inspector Nicholas R. Basich3

 conducted a regular inspection. He issued the 

two citations herein. Tr. 15; Ex. S-3; Jt. Ex. 1. 

During the inspection of RFR’s Ford F-550 truck, Inspector Basich observed a Quincy air 

compressor and 30-gallon air receiver tank in the bed of the truck. Tr. 15-16; Ex. S-3, S-5 at 3; 

Jt. Ex. 1. Basich looked for evidence that the receiver tank was inspected, and noted that it 

displayed no evidence that an inspector commissioned by the National Board performed an 

inspection. Tr. 15-16, 26. Basich then asked the driver of the RFR truck to produce evidence that 

the tank had been inspected by a National Board-commissioned inspector. Tr. 15, 17, 18, 43. 

After searching the truck, the RFR driver informed Basich that he did not have a permit or other 

proof of a conforming inspection. The RFR driver also telephoned the RFR office but was still 

unable to produce the documentation at which time Basich issued Citation No. 8785486. Tr. 18. 

Next, Inspector Basich observed two Eagle Manufacturing Company 5-gallon safety cans 

in the cargo bed of the truck. Tr. 29, 30. The safety cans were identical in design, with each 

being red in color and having a yellow stripe running horizontally around the upper portion of 

the cans. Tr. 31, 60; Ex. S-7; Jt. Ex. 1. However, the exterior of one safety can was labeled with 

the word “diesel,” whereas the other safety can did not have any similar writing. Tr. 29, 59. After 

the RFR driver stated that the safety can without writing held gasoline, Basich issued Citation 

2

 In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The 

Secretary’s exhibits are numbered Ex. S-2 to S-7. The Respondent’s exhibits are numbered Ex. 

R-1 to R-12. The stipulations are the only joint exhibit, Jt. Ex. 1. References to the Secretary’s 

Post-Hearing Brief are designated “SB,” and references to the Respondent’s Post-Hearing Brief 

are designated “RB.” 

3

 Basich has served as a mine safety and health inspector with MSHA for seven years. Tr. 

9, 10. Prior to becoming a mine inspector, Basich was employed in the construction industry, 

where he held supervisory positions. Tr. 10, 11. Basich attended the Mine Safety and Health 

Academy, and has specifically received training on pressure vessels and fire prevention. Tr. 12. 

42 FMSHRC Page 153
No. 8785487. Tr. 29; Ex. S-6, S-7. Shortly thereafter, the RFR driver wrote the word “gasoline” 

on the safety can and terminated the citation. Tr. 31, 32; Jt. Ex. 1. 

III. LEGAL PRINCIPLES 

A. Gravity 

Gravity is the degree of seriousness of the violation. Hubb Corp., 22 FMSHRC 606, 609 

(May 2000) (citing Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996)). The 

Commission has indicated that the focus of the gravity inquiry “is not necessarily on the 

reasonable likelihood of serious injury, which is the focus of the [significant and substantial] 

inquiry, but rather on the effect of the hazard if it occurs.” Consolidation, 18 FMSHRC at 1550; 

see also Harlan Cumberland Coal Co., 12 FMSHRC 134, 140-41 (Jan. 1990) (ALJ) (explaining 

that some violations are serious notwithstanding the likelihood of injury, such as a violation 

demonstrating recidivism, or a violation that could compound the effects of other conditions). 

B. Negligence 

 Negligence is conduct that falls below the high standard of care established by the Mine 

Act. 30 C.F.R. § 100.3(d). Operators must avoid conditions and practices that could cause 

injuries. Id. Negligence considers what actions a reasonably prudent person—familiar with the 

mining industry, the facts, and the protective purpose of the cited regulation—would have taken. 

Leeco, Inc., 38 FMSHRC 1634, 1637 (July 2016) (citing Brody Mining, LLC, 37 FMSHRC 

1687, 1702 (Aug. 2015)). An ALJ may “evaluate negligence from the starting point of a 

traditional negligence analysis” rather than consulting the Secretary’s definitions. Brody Mining, 

LLC, 37 FMSHRC at 1702. 

 

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Citation No. 8785486 in violation of 30 C.F.R. §56.13015 

1. Fact of Violation 

The condition or practice cited by Basich was that the 30-gallon pressure air receiver tank 

located in the bed of the mechanic’s Ford F-550 truck did not have a current record of inspection. 

Ex. S-2. The Secretary assessed the violation as unlikely to cause injury, but of a fatal nature to 

one miner and the result of moderate negligence. The proposed penalty is $114.00. 

The mandatory standard requires that compressed air receivers and other pressure vessels 

shall be inspected by inspectors holding a valid National Board Commission and in accordance 

with the applicable chapters of the National Board Inspection Code (“NBIC”). Records of the 

inspections shall be kept in accordance with the NBIC and shall be made available to the 

Secretary or his authorized representative. 30 C.F.R. §56.13015 (a) and (b). 

The applicable Chapter II of the NBIC requires that “inspections of ... pressure vessels as 

provided for in jurisdictional regulations, will be made at the time of installation and at regular 

42 FMSHRC Page 154
intervals thereafter.” R-10 at 5. The purpose of the NBIC is “to maintain the integrity of such ... 

vessels after they have been placed into service...by providing rules and guidelines for 

inspection after installation....thereby helping to ensure that these objects may continue to be 

safe.” Ex. R-10 at 5. 

2. Findings of Fact and Analysis 

Basich testified that regular inspections of a pressurized tank once it has left the 

manufacturer is critical. Tanks are handled multiple times thereafter in shipment, installation and 

pressurization. Such handling can cause fractures in the tank that are invisible to the naked eye 

yet serious enough to turn the tank into a “bomb” when pressurized during normal use. Shrapnel 

from the tank could easily cause fatal injuries should a miner be exposed to such an event. 

National Board inspectors perform tests that measure the thickness of the tank wall and inspect 

for any cracks, scars or other signs of damage using specialized equipment to ensure their 

continued safety. Once the tank is inspected, it is documented on paper with the name of the 

certified inspector, name of their company and the date on which the inspection was performed. 

The record indicates that the RFR tank was installed on the F-550 truck on December 17, 2014, 

one year and seven months prior to Basich’s inspection. It was then placed into operation at the 

mine on February 25, 2015, one year and five months prior to the inspection. Kelly George, Vice 

President of RFR testified that the RFR trucks are driven to multiple work sites across state lines 

with frequency. Tr. 70. It is therefore evident that any one of these transportation circuits as well 

as more than one year’s normal use and wear and tear on the tank could cause undetectable 

damage resulting in a catastrophic injury. 

Rain for Rent contests that violation on several bases, essentially arguing that the 

manufacturer’s plate issued by the American Society of Mechanical Engineers (“ASME”) 

(which was on the tank) complied with the mandatory standard and that the Secretary’s actions 

were arbitrary and capricious, and deprived the Respondent of fair notice and due process. None 

of these arguments are persuasive or relevant. 

Respondent cites to Chapter IV of the NBIC in support of its argument that the ASME 

plate on the tank was in compliance with the cited standard. Chapter IV, however, expressly 

“limits its application to the inspection during construction of and assembly of new pressure 

vessels.” Ex. R-10 at 4. Respondent further relies on D&H Gravel, 31 FMSHRC 272 

(2009)(ALJ) in support of its position that the Secretary’s interpretation of the standard is 

contrary to Commission precedent. Interestingly, Respondent failed to properly cite the case (or 

make mention of the fact) in its brief that D&H Gravel is an ALJ decision which holds no 

precedential value. I find, as a matter of law, the decision in that case was a misinterpretation of 

the mandatory standard and Chapter II of the NBIC. 

 Not only does RFR cite an inapplicable chapter of the NBIC and a decision of no 

precedential value, but its position flies directly in the face of the protective purpose of the Mine 

Act and could certainly not be so interpreted by a reasonable person familiar with the mining 

industry charged with being aware of the Secretary’s rules and regulations. 

 

42 FMSHRC Page 155
Respondent also argues in its brief: 

The California permit, like the manufacturer’s plate with an ASME certification, 

does not say “Nationally Board Certified” on its face. The arbitrariness of 

choosing to accept one and not the other is egregious in light of the fact the 

California permit does not even represent an inspection by an individual holding a 

National Board Certification. See Cal. Code Regs. tit. 8,§ 779. Issuing a citation 

without considering the manufacturer’s inspection plate with the ASME stamp, 

which FMSHRC precedent expressly finds is sufficient, shows that the action was 

arbitrary and capricious. See D&H Gravel, 31 FMSHRC at 280. 

RFR brief at 12. While difficult to make out the logic of the argument, it is clear that it 

misplaced. As found above, the SOL has not accepted the ASME stamp or the CA permit as 

evidence of compliance with the cited standard, nor have I. Again, reliance on D&H Gravel is 

misplaced. There is no “FMSHRC precedence” that finds the ASME stamp sufficient. 

RFR further contends that Inspector Basich issued his citation for the operator’s failure to 

comply with California law depriving it of fair notice. This is not the case. Basich found a 

violation of the unambiguous cited mandatory standard when he found no Commission-certified 

inspection on the tank or documentary evidence of the same. He did not apply California Law. 

Rain for Rent’s due process argument is based, again, on D&H Gravel and is therefore, again, 

misplaced and irrelevant. 

I hold that the SOL has proven by a preponderance of the evidence that a person with a 

valid National Board Commission did not inspect the tank within the plain and unambiguous 

language of 30 C.F.R. §56.13015(a). The standard provided the operator with adequate notice 

that such an inspection was required. I also find RFR failed to provide the Secretary through its 

authorized MSHA inspector documentary proof the required inspection in violation of 30 C.F.R. 

§56.13015(b). 

3. Negligence and Gravity 

Basich testified that he assessed the negligence as moderate because it was an open and 

obvious condition that RFR should have been aware of. Vice President Kelly George, who holds 

degrees in occupational safety and health and jurisprudence, testified that he was aware that 

California air tank inspectors were not required to be commissioned by the National Board and 

he could not ensure that RFR tanks were inspected by commissioned inspectors. I find moderate 

negligence is appropriate, although only just. I find the violation is reasonably serious and could 

have resulted in a fatal injury to one person should the unlikely event of a tank explosion occur. 

B. Citation No. 8785487 in violation of 30 C.F.R. §56.4402 

 

1. Facts of Violation 

The condition or practice Basich cited during his July inspection was that one of two 5 

gallon safety cans located in the bed of the Ford F-550 truck was not labeled to indicate its 

contents. It was full of gasoline according to the truck driver. It is accessed as unlikely to cause 

42 FMSHRC Page 156
and accident or injury resulting in lost workdays or restricted duty affecting one miner and the 

result of moderate negligence. Ex. S-6. The Secretary has proposed a civil penalty of $114.00. 

The cited mandatory standard requires “[s]mall cans of flammable liquids drawn from 

storage shall be kept in safety cans labeled to indicate the contents. 30 C.F.R. §56.4402. 

Basich testified that he found the cited red can was not labeled to indicate its contents. 

“So you couldn’t tell looking at the outside of the can what was inside the can.” Tr. 29; Ex. S-7. 

The can is visibly old, dented and scratched. A similar red can was found as well which had a 

label on it indicating that it contained diesel fuel. Tr. 59. Basich was concerned with the failure 

to label the can as misuse of it could lead to a fire. Tr. 14. At the time he issued the violation, it 

was late in the day towards the end of the shift and the gas can was full. Tr. 64. 

B. Findings of Fact and Analysis 

The Secretary asserts that the meaning of “contents” in this context means the name of 

the actual substance within the can. The Respondent, to simplify its myriad of arguments, urges 

that the color of the can, the printed warnings such as “flammable, explosive, and dangerous” 

and the like satisfy the language of the standard. 

I agree with the Secretary’s interpretation of this clearly worded standard. The word 

“contents” as Inspector Basich indicted, answers the question, “What’s inside?” The response is 

a thing -a noun, not an adjective describing the properties of what may be inside the can if it is 

filled with the intended contents – gasoline. That the red color of the can indicates the can should 

be filled with gasoline, in contrast to a yellow can which is suggested for diesel fuel, as RFR 

argues, is irrelevant. Nothing in the manufacturer’s literature or the National Fire Protection 

Code provisions submitted by RFR in support of the assertion that the red can is a sufficient 

indication of the contents therein, rules out the use of a red can for other substances. RFR also 

points to MSHA Hazardous Communication (“HazCom”) and OSHA standards as well as the 

MSHA Program Policy Letter (“PPL”) No. P13-IV-01 as proof that the cited can satisfies the 

requirements of §56.4402. Aside from being under entirely different sections of C.F.R. from 

what was cited here, the hazcom provisions offer no support of RFR’s position. The PPL 

requires a container to be labeled to include “the chemical identity” in addition to the appropriate 

warnings (flammable, toxic, explosive, etc.). Ex. R-4. Additionally, the PPL also states that 

OSHA requires labels to include the product identifier and chemical identity and have a Material 

Safety Data Sheets (“MSDS”) on hand to cross-reference for each hazardous chemical used at 

the mine. The significance of this is, an MSDS cannot be cross-referenced to “flammable” or any 

other adjective describing the property of a particular chemical without the specific identification 

of the chemical in question. 

Respondent once again misguidedly cites Bellaire Corporation, 12 FMSHRC 1726 

(1990)(ALJ) as precedence for finding the red can was sufficiently labeled. Again, RFR fails to 

properly cite or refer to the case as an ALJ decision, not Commission precedent. Furthermore, 

the issue in Bellaire was entirely different from the instant case. In fact, the Administrative Law 

Judge stated, “[t]he issue is whether the cans containing gasoline were properly ‘identified.’ The 

42 FMSHRC Page 157
cited safety standard expressly requires only ‘proper identification,’ not ‘proper labeling.’” 

Bellaire at 1730. 

The language of the standard in question is unambiguous. Any reasonable person familiar 

with the mining industry would know that a “label indicating contents” means what the particular 

substance is inside the can. I find the Secretary has met his burden of proving this violation. 

C. Negligence and Gravity 

I find the violation to be reasonably serious. Should the can be improperly handled, it 

could lead to serious burns to the driver of the truck. I agree with Basich that it would be 

unlikely. 

I find the negligence is properly assessed at moderate. The driver of the truck knew the 

can contained gasoline as opposed to the other red can containing diesel – a nonflammable fuel. 

However, the can was still full at the end of the shift and he was not the only miner with access 

to the can. Having both red cans containing different substances on hand could easily lead an 

inattentive miner to confuse the two and mishandle or misuse it resulting in injuries. 

V. PENALTIES 

Section 110(i) of the Mine Act grants the Commission the authority to assess all civil 

penalties provided for by the Act. Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763 (Aug. 

2012) (citing 30 U.S.C. § 820(i)). In determining penalty amounts, Section 110(i) directs the 

Commission to consider: 

[T]he operator’s history of previous violations, the appropriateness 

of such penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the operator’s 

ability to continue in business, the gravity of the violation, and 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 Commission and its ALJs are not bound by the penalties proposed by the Secretary, 

nor are they governed by MSHA’s Part 100 regulations, although ALJ penalty assessments 

“must reflect proper consideration” of the Section 110(i) criteria. Am. Coal Co., 38 FMSHRC 

1987, 1992-93 (Aug. 2016) (citations omitted). In addition to considering the Section 110(i) 

criteria, the judge must provide a factual basis upon which the Commission can perform its 

review function. See Martin Co. Coal Corp., 28 FMSHRC 247, 265-66 (May 2006) (citing 

Sellersburg, 5 FMSHRC 287, 292-93 (Mar. 1983)). My analysis of the Section 110(i) factors is 

set forth below. 

The parties have stipulated that RFR had no history of violations at the time these 

citations were issued and that the violations were abated in good faith. There is no evidence of 

42 FMSHRC Page 158
record of the operator’s inability to pay the proposed assessments and find that it is a large, 

global company and therefore find the penalties will not affect the operator’s ability to continue 

in business. The findings as to gravity and negligence involved in each citation are set forth 

above. 

After considering the six statutory penalty criteria, I assess a penalty of $114.00 for 

Citation No. 8785486 and $114.00 for Citation No. 8785487. 

ORDER 

Rain for Rent is hereby ORDERED to pay a total penalty of $228.00 for the violations 

herein within thirty (30) days of the date of this Decision and Order.4

 /s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

Andrew Tardiff, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 

401, Arlington, VA 22202 

Byron Walker, Rose Law Firm, 120 East Fourth Street, Little Rock, AR 72201 

4

 Payment should be sent to: Mine Safety and Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

42 FMSHRC Page 159
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 

DECISION

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 posthearing 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

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. 

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 

42 FMSHRC Page 160
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. 

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). 

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 case3 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 

 

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. 

42 FMSHRC Page 161
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 

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. 

42 FMSHRC Page 162
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, 

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. 

42 FMSHRC Page 163
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 body16 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 

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. 

42 FMSHRC Page 164
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 

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. 

42 FMSHRC Page 165
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 crossexamination 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 

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. 

42 FMSHRC Page 166
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 lockout 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 

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. 

42 FMSHRC Page 167
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 

42 FMSHRC Page 168
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 

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. 

42 FMSHRC Page 169
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 

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. 

42 FMSHRC Page 170
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. 

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. 

42 FMSHRC Page 171
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. 

42 FMSHRC Page 172
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 

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. 

42 FMSHRC Page 173
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 

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. 

42 FMSHRC Page 174
“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 

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. 

42 FMSHRC Page 175
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. 

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). 

42 FMSHRC Page 176
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, 

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. 

42 FMSHRC Page 177
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 

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. 

42 FMSHRC Page 178
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) 

42 FMSHRC Page 179