Secretary of Labor v. Dawes Rigging & Crane Rental

Plain-English summary

Dawes Rigging & Crane Rental was assembling a large mobile crane at the Tilden Mine when wind caused a suspended 93,000-pound boom to swing toward the crane cab. At a supervisor's direction, a worker crossed under the boom to pull a tag line and prevent a collision. The Commission held that the suspended-load standard applied during equipment assembly and that the worker's travel beneath the boom violated the requirement to stay clear. It vacated the unwarrantable-failure designation because the exposure lasted only seconds, endangered only the worker who crossed under the load, followed no similar warning or violation history, and occurred while addressing an imminent threat to another worker. The Commission left the $2,500 penalty in place because of the severe hazard, the supervisor's direction, and Dawes's role in creating the need to cross beneath the boom.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.16009
• Outcome: The violation and $2,500 penalty were affirmed, but the unwarrantable-failure designation was vacated.
• Key point: Emergency mitigation may not excuse a safety violation when the operator created the emergency, but it can weigh strongly against finding aggravated conduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA)

v.

DAWES RIGGING & CRANE RENTAL

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Docket No.

LAKE 2011-206-M

BEFORE: Nakamura, Acting Chairman; Cohen and Althen,
Commissioners

DECISION

BY THE COMMISSION:

This civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act”), and involves a single citation issued to Dawes Rigging and Crane
Rental (“Dawes”) by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”). Citation No. 6502467 alleges that Dawes’ workers
failed to stay clear of a suspended load as required by the mandatory safety
standard in 30 C.F.R.

§ 56.16009.[1] The Administrative Law
Judge affirmed the citation and the unwarrantable failure designation,
concluding that three workers were within the suspended load’s spin/arc/fall
path in violation of the standard. 34 FMSHRC 2012, 2024-25, 2028-29 (Aug. 2012)
(ALJ).

While we affirm the finding of a violation and
the assessed penalty, we conclude that the Judge erred in finding an
unwarrantable failure.[2] We find that the Judge
erred in his analysis of the extent of the violation, the length of time the
violation existed, and whether the operator was put on notice that greater
efforts were necessary to achieve compliance with the standard. In addition, in
light of these errors, the Judge failed to give proper weight to the fact that
the one worker who traveled directly under the suspended load did so to prevent
an imminent threat to another worker.

I.

Factual and
Procedural Background

Dawes was contracted to provide, assemble, and
operate a Manitowoc Model 21,000 mobile crane at Tilden Mine’s pellet plant in
Marquette County, Michigan. On May 27, 2010, Dawes was attempting to connect a
93,000 pound, 150 foot long lattice boom to the body of the Model 21,000 crane
with the help of a smaller Manitowoc Model 14,000 crane. 34 FMSHRC at 2017,
2030. This process, referred to as the “boom-to-foot connection,” required the
smaller crane to lift the lattice boom precisely into place so that the boom
and body of the larger crane line up and pins could be inserted to connect the
two components. Id. at 2017, 2021. The assembly of the crane was
overseen by Assembly/Disassembly Director William Rahmlow, a veteran in crane
operation and assembly with over two decades of experience at Dawes. Id. at
2019.

Dawes employed seven men to complete the
boom-to-foot connection. Jeffery Eick and an oiler were tasked with holding tag
lines to help stabilize the elevated boom. Eick was positioned two to seven
feet to the east of the boom on the end of the boom closest to the body of the
Model 21,000 crane, and the oiler was on the west side of the boom on the
opposite end. Rahmlow was immediately adjacent to the west side of the
boom, across from Eick, giving instructions to the crew to help guide the boom
into place. Id. at 2020-21, 2024-25; Dawes Ex. 12. Two men were located
on the body of the large crane where they would make the final pin connections
when the boom was in place. 34 FMSHRC at 2017; Tr. 162. Cleve Mozley was
operating the Model 21,000 crane, and Randy Gilbertson was operating the Model
14,000 crane. 34 FMSHRC at 2017.

While the lattice boom was being lifted into
place, a gust of wind caused the boom to swing to the east towards the cab of
the large crane where Mozley was working. Id. at 2018. To avoid a
collision, Rahmlow instructed Eick to cross under the boom to pull the boom
away from the cab. Id. at 2025; Tr. 169, 170. Eick complied, and with
Rahmlow’s assistance, was able to pull the tag line and re-stabilize the boom. 34
FMSHRC at 2025.                    

MSHA Inspector Dominic Vilona observed Dawes’
assembly of the crane from inside a van parked atop a hill 150 yards away. Id.
at 2014, 2014 n.2. From the inspector’s vantage point, it appeared that
Rahmlow was working directly under the boom. Tr. 26-27. Vilona also observed
another miner (Eick) on the northeast side of the boom holding a tag line. Tr.

27. Vilona then had the van driver go to the site, where he observed that the
    person with the tag line had moved to the northwest side of the boom. Tr.
    31-32. Accordingly, Vilona issued a citation alleging a violation of
    section 56.16009 for the two men’s failure to stay clear of a suspended load. Tr.
    45; 34 FMSHRC at 2015.

In his decision below, the Judge found that
Eick, Rahmlow, and Mozley had failed to stay clear of the area in which the
boom could have moved, spun, or fallen in violation of the standard. 34 FMSHRC
at 2024. Although Rahmlow and Mozley were never directly under the suspended
boom, the Judge noted that their proximity to the boom placed them both at risk
of serious injury were it to move or fall unexpectedly. Id. at 2024-25. 

Dawes filed a petition for review, which the
Commission granted. It contends that the cited standard does not apply to the
assembly of a crane, and even if it does, the regulations should not be
interpreted to prevent the assembly crew from working alongside the suspended
boom. Dawes further argues that the Judge erred in finding an unwarrantable
failure as its conduct did not rise to the level of aggravated conduct or a
reckless disregard or indifference to the safety of its workers.       

II.

Disposition

A.        Whether
Section 56.16009 Applies to Suspended Components During Equipment Assembly

The cited standard, 30 C.F.R. § 56.16009,
appears in the regulations governing metal and nonmetal mines, under Subpart O
entitled “Materials Storage and Handling.” Dawes asserts that the crane is
“machinery” rather than “material” and hence is not covered by the standard. 

Regulatory language cannot be construed in a
vacuum but must be read in its context and with a view to its place in the
overall regulatory scheme. See Davis v. Michigan Dept. of Treasury, 489
U.S. 803, 809 (1989). When a regulation is ambiguous, traditional tenets of
regulatory interpretation permit examination of the heading of the section in
which the regulation falls to assist in resolving doubt about its meaning. Northshore
Mining Co. v. Sec’y of Labor, 709 F.3d 706, 710 (8th Cir. 2013) (citing Bhd.
of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529
(1947); Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998)).          

Although ambiguity may exist in the scope of the
regulation’s application, we find the term “materials” sufficiently broad to
encompass the suspended boom in question. “Materials” is defined, inter alia,
as the “substance or substances out of which a thing is or can be made” or the
“[t]ools or apparatus for the performance of a given task.” American Heritage Dictionary of the English
Language 1079 (4th ed. 2009); see also Robert Hardin, 19 FMSHRC
1233, 1237 (June 1997) (defining the term “smoking materials”). We are not
persuaded by Dawes’ contention that the suspended boom is beyond the purview of
the regulation. The placement of the regulation does not exclude suspended
equipment from coverage. See Jim Walter Res., Inc., 7 FMSHRC 493, 495-96
(Apr. 1985) (finding a regulation governing the transport of “materials” to include
the transport of coal, despite the Judge’s finding that a more appropriate
standard existed). Additionally, Subpart O contains other regulations that
address equipment such as overhead cranes (§§ 56.16014, 56.16015), forklifts (§
56.16016), and tag lines, hitches and slings (§ 56.16007).

We decline to read a limitation into the
standard where none exists. We find the standard applicable to the case at
hand.

B.        Whether Dawes’ Conduct Violated Section
56.16009

The question of whether an operator has violated
section 56.16009 is dependent on whether a person was not “clear of” the
suspended load. The inspector issued Citation No. 6502467 based on the belief
that both Eick and Rahmlow had failed to stay clear of the suspended load
because they had gone directly under the boom. The Judge discounted the
inspector’s testimony concerning Rahmlow’s location directly under the boom
based on the contrary testimony by Dawes’ witnesses and the inspector’s
distance from the assembly site. 34 FMSHRC at 2024-25. However, the Judge
interpreted “stay clear of” to prohibit persons from working in the suspended
load’s possible arc or radius and the area that would be affected should the
load fall. Id. at 2024. Accordingly, the Judge found that not only were
Eick and Rahmlow in violation of the standard, but that Mozley, who was
operating the Model 21,000 crane, was also not clear of the boom.

All parties agree that it is not safe to stand
directly under a suspended load. See Tr. 86, 121, 146, 160, 173, 179,
189; Sec’y Ex. 15 at 2-20, Fig. 2-4. Further, we have held that “stay clear of”
requires more than simply staying out from directly underneath a suspended
load. Anaconda Co., 3 FMSHRC 299, 301 (Feb. 1981). As explained below,
the record in this case does not permit further elaboration on the principle in
Anaconda.

It is undisputed that, at Rahmlow’s direction,
Eick crossed directly under the suspended load in order to pull the wayward
boom away from the cab where Mozley was working. In doing so, Eick placed
himself in danger of potentially fatal injuries were the crane’s rigging to
fail and the 93,000 pound boom to fall. Although in some emergency situations
there may be instances where an operator is justified in violating a standard
to prevent an impeding greater hazard, Sewell Coal Co., 5 FMSHRC 2026,
2029 n.2 (Dec. 1983), Eick’s conduct cannot be excused by citing the threat the
boom posed to Mozley. This was an emergency of Dawes’ own making by virtue of
the number and placement of tag lines attached to the boom. Had Dawes employed
additional tag lines or made effective use of the two existing tag lines, the
crane assembly crew would have been better situated to counteract the effect of
the sudden gust of wind without resorting to Eick moving under the boom. Eick’s
travel beneath the boom clearly violated the regulation.  

The case regarding the placement of Rahmlow and
Mozley is not as straightforward. Much of the testimony of the Secretary’s sole
witness, Inspector Vilona, was not credited by the Judge because of the
inspector’s distance from the assembly site and his relative inexperience with
the crane assembly process. 34 FMSHRC at 2014 n.2, 2025 n.14. Whether a person
is clear of a suspended load must be determined by considering the particular
facts surrounding the violation. The case cannot rest on a vague observation
that suspended loads move in unpredictable ways. Tr. 46.

No evidence was presented that either Rahmlow or
Mozley was ever beneath the boom, and it is not clear from the evidence whether
they were located in positions in which they were in danger from the movement
or falling of the boom. The Secretary did not produce any evidence as to the
area which would be affected if the boom fell.[3] In any event, Eick’s
unquestioned movement under the boom clearly violated the standard and we
affirm the Judge’s finding of a violation.

C.        Whether the Judge Erred in Finding an
Unwarrantable Failure                       

Unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.  Emery Mining Corp., 9
FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is characterized by
“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious
lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc., 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s
unwarrantable failure test).

Whether the conduct is “aggravated” in the
context of unwarrantable failure is determined by looking at all the facts and
circumstances of each case, including (1) the extent of the violative
condition, (2) the length of time that it has existed, (3) whether the
violation posed a high risk of danger, (4) whether the violation was obvious,
(5) the operator’s knowledge of the existence of the violation, (6) the
operator’s efforts in abating the violative condition, and (7) whether the
operator has been placed on notice that greater efforts are necessary for compliance.
See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal
Co., 31 FMSHRC 1346, 1350-57 (Dec. 2009); Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42
(D.C. Cir. 1999). These factors need to be viewed in the context of the factual
circumstances of a particular case. Consolidation Coal Co., 23 FMSHRC
588, 593 (June 2001). All of the relevant facts and circumstances of each case
must be examined to determine if an operator’s conduct is aggravated or whether
mitigating circumstances exist. Id.

Having reviewed the Judge’s application of those
factors, we vacate the Judge’s unwarrantable failure determination. As set
forth below, the factors relevant to an unwarrantable failure determination do
not support a finding of an unwarrantable failure.

The extensiveness of the violative
conduct has traditionally been determined by examining the extent of the
affected area as it existed at the time the citation was issued. See E.
Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010) (the purpose of the
extensiveness criterion is to account for the magnitude or scope of the
violation); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992) (finding
five accumulations of loose coal identified during a single inspection to be
extensive). In some situations, though, extensiveness depends on the number of
persons affected by the violation. See Watkins Eng’rs & Constructors,
24 FMSHRC 669, 681 (July 2002). As discussed above, the evidence establishes that
Eick engaged in violative conduct and that his presence under the boom only
endangered himself. Given the relatively small scope of the hazard, the
violation was not extensive.

An operator’s past practices are not relevant to
the consideration of the extensiveness factor in an unwarrantable determination
analysis. To the extent the Judge based his unwarrantable failure finding on
Dawes’ past practices, he erred. However, even considering past practices, the
record does not support a finding that the violative conduct was pervasive. Dawes
is a contractor that operates at work sites beyond MSHA jurisdiction, which are
governed by regulatory schemes with different rules regarding how close persons
can work in relation to suspended loads. The record only indicates that Dawes
worked at one other mine prior to its work at Tilden Mine, and there is no
testimony as to the type of work performed at mines in the past. See Sec’y
Ex. 14. In light of the fact that the record establishes a relatively discrete
violation in this case, and without past examples of Dawes employees failing to
stay clear of suspended loads at MSHA regulated work sites, there is no basis
for finding that the violative conduct was extensive.[4] 

Similarly, the record does not support
the Judge’s presumption that Eick was in dangerous proximity to the boom for a
significant amount of time. Eick was only under the suspended boom for a matter
of seconds. Tr. 54. Although his actions placed him in danger of serious injury
were the rigging to fail, Eick’s exposure to this danger was very brief. Accordingly,
the extensiveness and duration of the violative condition weigh against a
finding of an unwarrantable failure.

Repeated similar violations may be
relevant to an unwarrantable failure determination to the extent that they
serve to put an operator on notice that greater efforts are necessary for
compliance with a standard. Amax Coal Co., 19 FMSHRC 846, 851 (May
1997); see also Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001)
(“a high number of past violations of section 75.400 serve to put an operator
on notice that it has a recurring safety problem in need of correction”)
(citations omitted). “The purpose of evaluating the number of past violations
is to determine the degree to which those violations have ‘engendered in the
operator a heightened awareness of a serious . . . problem.’” San Juan Coal
Co., 29 FMSHRC 125, 131 (Mar. 2007) (quoting Mid-Continent Res., Inc.,
16 FMSHRC 1226, 1232 (June 1994)).[5]

The Judge suggests that the operator was
indirectly on notice that greater efforts were necessary where the regulation
and its intent were clear. 34 FMSHRC at 2029. However, the evidence
demonstrates that Dawes had a good safety record. In the 15 months prior to the
issuance of the citation, Dawes had only been cited for two violations by MSHA,
neither of which alleged a violation of section 56.16009 or a danger posed by a
suspended load. Sec’y Ex. 14.  There is nothing in the record to suggest that
MSHA had previously spoken to Dawes about its crane assembly process or that
Dawes was alerted in any other way that employees failing to stay clear of
suspended loads represented an ongoing problem requiring corrective measures. Accordingly,
we determine that substantial evidence does not support the Judge’s finding of
notice and conclude that this factor also weighs against a finding of
unwarrantable failure.                    

Finally, as we have discussed, the Judge’s
findings regarding extensiveness, duration, and notice were erroneous. In light
of this, we conclude that the mitigating circumstances present here outweigh
the remaining factors the Judge relied on to find unwarrantable failure. Most
importantly, we agree that Eick’s explanation for why he did not stay clear of
the suspended load should be considered as a mitigating factor. The evidence
indicates that Eick only crossed under the boom in order to address an imminent
threat to Mozley. While such a consideration does not negate the violation, it
significantly militates against a finding that Dawes was indifferent to the
safety of its employees.

D.        Penalty
Determination                                 

Although we vacate the unwarrantable failure
designation, we find the Judge’s application of the civil penalty criteria in
assessing a penalty of $2,500 is not an abuse of discretion. The Secretary
proposed a penalty of $3,000, which the Judge reduced to $2,500. The penalty
assessed by the Judge falls within the range of his discretion given the high
level of danger the 93,000 pound boom posed; the fact that Rahmlow, a
supervisor, instructed Eick to cross under the suspended load; and that Dawes’
decision regarding the number and placement of tag lines to control the
suspended load precipitated the need to go beneath the suspended load.

III.

Conclusion

For the reasons set forth above, we (1)
affirm in result the Judge’s finding that Dawes violated section 56.16009, (2)
vacate the unwarrantable failure designation, and (3) affirm the $2,500 penalty
assessed by the Judge.

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting
Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

[1]
30 C.F.R. § 56.16009 provides that “[p]ersons shall stay clear of suspended
loads.”

[2]
The unwarrantable failure terminology is taken from section 104(d)(1) of the
Mine Act, 30 U.S.C. § 814(d)(1), which establishes more severe sanctions for
any violation that is caused by “an unwarrantable failure of [an] operator to
comply with . . . mandatory health or safety standards.”

[3]
Because Vilona issued the citation based on his belief that persons worked
directly underneath the suspended boom, there is scant evidence in the record
explaining what area posed a risk to persons, beyond that directly under the
boom. The inspector evidently did not believe that Mozley was exposed to the
hazards posed by the boom. Tr. 44-45. Similarly, the inspector did not appear
to believe that Rahmlow’s position next to, but not under, the boom placed him
at risk of immediate injury. Tr. 84. When Vilona reached the crane assembly
site, Rahmlow was standing very close to the boom guiding the boom-to-foot
connection. Tr. 38; Sec’y Ex. 4 at 1.

[4]
Given that substantial evidence only supports the finding that Eick violated
the standard, the Judge erred insomuch as he considered Rahmlow’s and Mozley’s
conduct in his unwarrantable failure analysis. See Slip op., supra,
at 4-5.

[5]
A significant difference exists between the forms of notice that inform an
operator of the Secretary’s interpretation of a standard and the forms of
notice that inform an operator that greater efforts at compliance are needed
for purposes of an unwarrantable failure analysis. An operator is on notice of
the Secretary’s interpretation of a regulation when it is, or reasonably should
be, aware of the standard’s requirements or is aware of other regulatory
enforcement announcements, such as the Rules to Live By initiative. However,
such notice of a regulatory interpretation does not place an operator on notice
that its mine is failing to comply with MSHA’s regulations for the purposes of
the unwarrantable failure analysis. In that context, it is well settled that we
examine the operator’s history of violations, warnings from inspectors, and other
forms of specific warnings to determine if the operator has been placed on
notice of a persistent unsafe condition or practice at its mine. See Peabody
Coal Co., 14 FMSHRC 1258, 1262 (Aug. 1992) (past preshift examinations
placed operator on notice of a problem); Consolidation Coal Co., 23
FMSHRC 588, 595 (June 2001) (past discussions with MSHA placed operator on
notice of a problem); Lion Mining Co., 18 FMSHRC 695, 700 (May 1996)
(history of similar violations and recent roof falls placed operator on notice
of a problem).