Secretary of Labor v. Sims Crane

Plain-English summary

Sims Crane employees twice walked beneath a 625-pound steel spreader bar suspended more than 25 feet above the ground at S.D.I. Quarry. Judge Thomas P. McCarthy held that the spreader bar was a suspended load under the cited standard and that workers had to stay clear of its fall zone. The judge found the chance of a fall unlikely because the bar was securely attached, but found that a falling bar could cause a fatal crushing injury. He increased negligence from moderate to high because the crane operator walked beneath the bar a second time after an MSHA inspector explicitly warned him that doing so violated the standard. The citation was affirmed with a $300 penalty, and the Commission later affirmed the violation and penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.16009
• Outcome: The citation was affirmed, negligence was increased to high, and a $300 penalty was assessed.
• Subsequent review: The Commission affirmed the violation and penalty in se-2015-315-m-commission.
• Key point: Repeating a suspended-load violation after an inspector's direct warning supported a high-negligence finding.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

May 3, 2016

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner

v.

SIMS
CRANE,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2015-315

A.C.
No. 08-01336-381845 (B1758)

Mine:
S.D.I. Quarry

DECISION AND ORDER

Appearances:               Daniel
R. McIntyre, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner

W.
Ben Hart, CMSP, W. Ben Hart & Associates, Tallahassee, Florida, for
Respondent

Before:                                    Judge
McCarthy

I.         
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”)
against Sims Crane (“Sims” or “Respondent”), pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 815(a). 
This docket was designated for Simplified Proceedings and contains one section
104(a) citation alleging a violation of a mandatory health and safety standard.

A hearing was held in Miami,
Florida on March 31, 2016.  During the hearing, the parties offered testimony
and documentary evidence.[1] 
Witnesses were sequestered.  Thereafter, the parties presented closing
arguments in lieu of submitting post-hearing briefs, pursuant to Commission
Procedural Rule 108(e), 30 C.F.R. § 2700.108(e).

For the reasons set forth below,
I affirm Citation No. 8819088, but increase the level of negligence from
“moderate” to “high.”  I assess a civil penalty of $300. 

Based on the entire record,
including my observation of the demeanor of the witnesses,[2]
and after considering the parties’ closing statements, I make the following
findings: 

II.       STIPULATIONS
AND GENERAL FACTUAL BACKGROUND

A. 
Stipulations of Fact and Law

At hearing, the parties agreed to
the following stipulations:

1.     
Jurisdiction
exists because Respondent was an operator of a mine as defined in section 3(b)
of the Mine Act, 30 C.F.R. § 803(b), and the products of the subject mine
entered into the stream of commerce or the operations or products thereof
affected commerce within the meaning and scope of section 4 of the Act, 30
U.S.C. § 803.

2.     
Sims
is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq.

3.     
The
Administrative Law Judge has jurisdiction over these proceedings pursuant to
§ 105 of the Mine Act.

4.     
The
MSHA citation at issue in this proceeding was properly served upon Sims as
required by the Mine Act.

5.     
The
citation at issue in this proceeding may be admitted into evidence by
stipulation for the purpose of establishing its issuance.

6.     
The
penalties proposed by the Secretary in this case will not affect the ability of
Sims to continue in business.

7.     
Sims
was at all times relevant to these proceedings engaged in mining activities at
the S.D.I. Quarry located in or near Florida City, Florida.

8.     
Sims’
mining operations affect interstate commerce.

9.     
Sims
in an “operator” as that word is defined in § 3(d) of the Mine Act, 30
U.S.C. § 803(d), at the S.D.I. Quarry (Mine ID No. 08-01336) where
the contested citation in this proceeding was issued.

10. 
On
the date the citation in this docket was issued, the issuing MSHA
metal/non-metal mine inspector was acting as a duly authorized representative
of the Secretary, assigned to MSHA, and was acting in his official capacity
when conducting the inspection and issuing the MSHA citation.

11. 
Sims
demonstrated good faith in abating the alleged violation.

Exs.
ALJ-1, ALJ-2; Tr. 9-11.

B.
 General Factual Background

MSHA
Inspector Robert Peters[3]
issued the disputed citation at S.D.I. Quarry in Florida City, FL on April 7,
2015.  Exs. S-2; ALJ-1; Tr. 36-37.  During the inspection, the mine had
contractors on-site to complete modifications to its plant.  Tr. 24.  As part
of these modifications, the mine employed Sims to perform crane operations that
day.  Tr. 24, 101-104.  Contractors performing services at mines must comply
with MSHA health and safety standards.  Tr. 38.  The citation at issue alleges
that Sims’ crane operator and helper did not stay clear of a suspended load,
violating MSHA standard 30 C.F.R. § 56.16009.  Ex. S-2.  The independent
facts and circumstances surrounding the citation are discussed in greater
detail below.

III.    PRINCIPLES OF
LAW

A.  Establishing a Violation

To
prevail on a penalty petition, the Secretary bears the burden of proving by a
preponderance of the evidence that a violation of the Mine Act occurred.  RAG
Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272
F.3d 590 (D.C. Cir. 2001).  A mine operator is held strictly liable for
violations that occur at its mine.  Spartan Mining Co., 30 FMSHRC 699,
706 (Aug. 2008).  An operator may avoid liability only by showing that
it was not properly on notice of the violative nature of its conduct.  Even in
the absence of actual notice, the Secretary may properly charge an operator
with a violation when a reasonably prudent person familiar with the protective
purposes of the cited standard and the factual circumstances surrounding the
allegedly hazardous condition, including any facts peculiar to the mining
industry, would have recognized a hazard warranting corrective action within
the purview of the applicable regulation.  LaFarge North America, 35
FMSHRC 3497, 3500-01 (Dec. 2013); Ideal Cement Co., 12 FMSHRC 2409,
2415-16 (Nov. 1990); Alabama By-Products Corp., 4 FMSHRC 2128, 2129
(Dec. 1982).

B.  Gravity

The gravity penalty criterion under
section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is often viewed in terms
of the seriousness of the violation.”  Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287,
294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987)).  The seriousness
of a violation can be examined by looking at the importance of the standard
violated and the operator’s conduct with respect to that standard, in the
context of the Mine Act’s purpose of limiting violations and protecting the
safety and health of miners.  See, e.g., Harlan Cumberland
Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). 

The gravity analysis focuses on factors
such as the likelihood of an injury, the severity of an injury, and the number
of miners potentially injured.  The Commission has recognized that an
assessment of the likelihood of injury is to be made assuming continued normal
mining operations, without abatement of the violation.  U.S. Steel Mining
Co., 7 FMSHRC 1125, 1130 (Aug. 1985).

C.  Negligence

Negligence is
not defined in the Mine Act.  The Commission has found “[e]ach mandatory
standard thus carries with it an accompanying duty of care to avoid violations
of the standard, and an operator’s failure to satisfy the appropriate duty can
lead to a finding of negligence if a violation of the standard occurred.”  A.H.
Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983) (citations omitted).  In
determining whether an operator meets its duty of care under the cited
standard, the Commission considers what actions would have been taken under the
same or similar circumstances by a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the
regulation.  See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). 
See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975,
1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take
specific action required by standard violated); Spartan Mining Co., 30
FMSHRC 699, 708 (Aug. 2008) (negligence inquiry circumscribed by scope of
duties imposed by regulation violated).

Although MSHA’s
regulations regarding negligence are not binding on the Commission, see Wade
Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines
negligence by regulation in the civil penalty context as follows: 

Negligence is
conduct, either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm. 
Under the Mine Act, an operator is held to a high standard of care.  A mine
operator is required to be on the alert for conditions and practices in the
mine that affect the safety or health of miners and to take steps necessary to
correct or prevent hazardous conditions or practices.  The failure to exercise
a high standard of care constitutes negligence.  The negligence criterion
assigns penalty points based on the degree to which the operator failed to
exercise a high standard of care.   When applying this criterion, MSHA
considers mitigating circumstances which may include, but are not limited to,
actions taken by the operator to prevent or correct hazardous conditions or
practices . . . .

30 C.F.R. §
100.3(d).  

MSHA regulations
further provide that mitigation is something the operator does affirmatively,
with knowledge of the potential hazard being mitigated, and that tends to
reduce the likelihood of an injury to a miner.  This includes actions taken by
the operator to prevent or correct hazardous conditions.  30 C.F.R. §
100.3(d).   According to MSHA, the level of negligence is properly designated
as high when “[t]he operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.”  30 C.F.R. §
100.3, Table X.  The level of negligence is properly designated as
moderate when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.”  Id.  The level of
negligence is properly designated as low when there are considerable mitigating
circumstances surrounding the violation.  Id.  

Recently, the
Commission held that Commission judges are not required to apply the
level-of-negligence definitions in Part 100 and may evaluate negligence
from the starting point of a traditional negligence analysis rather than from
the Part 100 definitions.  Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug.
2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64
(D.C. Cir. 2016).  Moreover, because Commission judges are not bound by the
definitions in Part 100 when considering an operator’s negligence, they are not
limited to a specific evaluation of potential mitigating circumstances, and may
find “high negligence,” in spite of mitigating circumstances, or moderate
negligence, without identifying mitigating circumstances.  Brody, 37
FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64.  In this regard, the
gravamen of high negligence is “an aggravated lack of care that is more than
ordinary negligence.” Brody, 37 FMSHRC at 1701, (citing Topper Coal
Co., 20 FMSHRC 344, 350) (Apr. 1998).  Thus, in making a negligence
determination, a Commission judge is not limited to an evaluation of allegedly
mitigating circumstances and may consider the totality of the circumstances
holistically.  Under such an analysis, an operator is negligent if it fails to
meet the requisite high standard of care under the Mine Act.  Id.

D.  Penalty
Assessment

The Act requires
that the Commission consider the following statutory criteria when assessing a
civil penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of the penalty to the size of the business; (3) the operator’s
negligence; (4) the operator’s ability to stay in business; (5) the gravity of
the violation; and (6) any good-faith compliance after notice of the
violation.  Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000);
30 U.S.C. § 820(i).  The Commission is not required to give equal weight to
each of the criteria, but must provide an explanation for any substantial
divergence from the proposed penalty based on such criteria.  Spartan Mining
Co., 30 FMSHRC 699, 723 (Aug. 2008).

As I
discussed in my final Big Ridge decision, in an effort to avoid the
appearance of arbitrariness, I look to the Secretary’s penalty regulations and
assessment formula as a reference point that provides useful guidance when
assessing a civil penalty.  Big Ridge Inc., 36 FMSHRC 1677, 1681-82
(July 2014) (ALJ); see also Wade Sand & Gravel, supra,
at 1880 n.1 (Chairman Jordan and Commissioner Nakamura, concurring).  See
also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945) (holding that an agency’s interpretation of its own regulation should be
given controlling weight unless it is plainly erroneous or inconsistent with
the regulation).  This formula is not binding, but operates as a lodestar,
since factors involved in a violation, such as the level of negligence, may
fall on a continuum rather than fit neatly into one of five gradations.  Unique
aggravating or mitigating circumstances will be taken into account and may call
for higher or lower penalties that diverge from this paradigm.  My independent
penalty assessment analysis applies to the citation at issue in this case.

IV.    FURTHER FINDINGS
OF FACT, ANALYSIS,

AND CONCLUSIONS OF LAW

A.  Citation No.
8819088: Failure to Stay Clear of Suspended Load

1. Further Findings of Fact

Inspector Peters
began his inspection of S.D.I. Quarry at about 7:00 a.m. on April 7, 2015.  Tr.

24.  During the inspection, a mine supervisor informed Peters that the mine had
contractors on-site to perform modifications to the mine’s plant.  Id.  While
inspecting the plant, Peters saw a crane operating approximately 50 feet away. 
Tr. 24-25.  The crane had a spreader bar attached to its hoist hook.  Tr. 24,
29-30.

A
spreader bar is a rigging device used to aid crane operators in picking up
heavier loads by distributing the load of the lift across multiple connection
points.  Tr. 29.  The spreader bar that was attached to the crane that Peters
observed consisted of a steel cylinder measuring approximately 14 feet long and
8 inches in diameter.[4] 
Tr. 118; Exs. S-4, R-10.  The spreader bar was hung from the crane’s hoist hook
by cables, which looped through to U-shaped shackles at each end of the spreader
bar.  Tr. 30, 93; Ex. S-4.  Steel pins inserted through the shackles secured
the shackles and cables to the spreader bar.  Tr. 30-31, 94; Ex. S-4.  The
steel pins could be removed to detach the spreader bar from the cables and crane. 
Tr. 31.  The spreader bar weighed approximately 625 pounds.[5] 
Tr. 118; Ex. R-10.  When rigged up, the spreader bar is typically suspended at
around chest to head height.  Tr. 125. 

The spreader bar was rigged to the crane and
suspended approximately 25- to 35-feet in the air when Peters observed it.  Tr.
25, 29, 111; Ex. S-3.  At that point in time, the spreader bar had been lifted
in order for crane operator Milton Minchener[6]
(“Minchener”) to scope out the crane.  Tr. 111-12, 127.  Minchener testified
that he had finished scoping and began swinging and cabling the spreader bar down
into the area where he and Assad would finish attaching the load they were
assigned to move.  Tr. 111-12.  Meanwhile, Peters saw crane helper William
Assad standing directly underneath the suspended spreader bar.  Tr. 24; Ex.
S-2.  Peters immediately went over toward the crane to tell Assad to move out
from underneath the spreader bar.  Tr. 25. 

Peters informed Assad that he was issuing a verbal
imminent danger order for standing underneath a suspended load in violation of
MSHA standards.[7] 
Tr. 25-26.  During this conversation, Minchener got out of the crane cab and
walked over to Peters and Assad, passing underneath the spreader bar to get to
their location.  Tr. 34-35.  When Minchener arrived, Inspector Peters informed
him that he could not walk underneath a suspended load.  Id.  Minchener
disagreed with the inspector and walked back toward the crane cab, passing
underneath the spreader bar once more.  Tr. 36.

Upon examining
the situation further, Peters issued Citation No. 8819088, alleging a violation
of 30 C.F.R. § 56.16009.  Ex. S-2.  Inspector Peters determined that this
alleged failure to stay clear of a suspended load was unlikely to cause injury
or illness to any workers, but that any injury could reasonably be expected to be
fatal if the spreader bar fell and struck a miner.  Tr. 37; Ex. S-2.  Peters designated
the operator’s negligence as moderate.  Ex. S-2.  Sims abated the violation by
removing miners from the area underneath the spreader bar and lowering the
spreader bar onto a truck.  Tr. 38; Ex. S-2.

At the hearing,
Sims called safety director Berry to discuss crane operation and industry
standards.[8]
 Tr. 55.  Berry was not involved in the incident that led to the disputed
citation, but offered testimony based on his knowledge and professional experience
training crane operators and riggers.  Tr. 55-58.  According to Berry, the
spreader bar did not constitute a load under OSHA standards.  Tr. 60-65; Exs. R-2,
R-3.  OSHA defines “load” as the objects or weight of objects being hoisted, referring
to both the objects and any load-attaching equipment.  Id.  Berry opined
that a spreader bar does not constitute a load under OSHA’s definition until it
is attached to the object being lifted.  Tr. 76.  Berry also explained that OSHA
standards allow workers to stand within the “fall zone” of suspended loads in
certain situations, which include rigging up a load.  Tr. 65-69; Ex. R-3.   OSHA
defines “fall zone” as the area in which it is reasonably foreseeable that
suspended materials could fall in the event of an accident.  Ex. R-3.  Berry additionally
testified that if the spreader bar were to fall, it would have not caused any
major injuries.  Tr. 91-92.

2.  Analysis and Conclusions of Law

i. 
Violation of 30 C.F.R. § 56.16009

30 C.F.R.
§ 56.16009 provides that “[p]ersons shall stay clear of suspended loads.” 
The standard aims to prevent individuals from being hit and injured by such
loads should they fall or swing.  The Secretary contends that Respondent’s
crane operator and helper violated the standard by walking directly underneath
the suspended spreader bar.  Tr. 131-133.  Respondent, on the other hand,
relies on OSHA standards to assert that the spreader bar did not constitute a
“load” and that its workers were allowed to be within the spreader bar’s fall
zone.  Tr. 18, 145-146. 

It is undisputed that both Assad and Minchener
walked directly beneath the suspended spreader bar.  The issue here is whether
the spreader bar constituted a “load.”  MSHA regulations do not define the term
“load,” nor has the Commission provided a clear definition of the term.  In the
absence of a statutory or regulatory definition, the Commission applies the
ordinary meaning of a term.  Twentymile Coal Co., 30 FMSHRC 736, 750
(Aug. 2008).  Commission judges have relied on the dictionary definition of the
term “load” in their interpretations of 30 C.F.R. § 56.16009.[9] 
See e.g., CCC Group, Inc., 34 FMSHRC 1192, 1196 (May 2012) (ALJ); Haines
& Kibblehouse, Inc., 30 FMSHRC 504, 516 (Jun. 2008) (ALJ). 

The dictionary defines a “load” as a “weight or mass
that is supported.”  The American Heritage Dictionary of the English
Language 1025 (4th ed. 2009).  In this case, the spreader bar weighed
approximately 625 pounds.  Tr. 118; Ex. R-10.  It was supported by cables,
which hung from the crane’s hoist hook and attached to the spreader bar by
removable pins and shackles.  Tr. 30, 93; Ex. S-4.  Although the spreader bar
was secured by cables and pins, those equipment pieces could fail and cause the
spreader bar to fall.  Tr. 92-95.  Under the ordinary meaning of the term, therefore,
I conclude that the spreader bar constituted a “load” for purposes of 30 C.F.R.
§ 56.16009. 

Furthermore, OSHA standards are not legally binding
on MSHA.  Respondent has stipulated that it is subject to the jurisdiction of
the Mine Act, was engaged in mining activities at the times relevant to this
proceeding, and is an operator as defined by the Mine Act.  Ex. ALJ-1. 
Therefore, I find that the OSHA regulations and definitions that Respondent’s
relies upon are not dispositive for purposes of determining whether Respondent
violated the MSHA standard.[10]

Accordingly, I find that Respondent violated 30
C.F.R. § 56.16009.

ii.  Gravity

Inspector
Peters designated the violation’s gravity as unlikely to result in injury or
illness.  Ex. S-2.  He also found that if any injury or illness did occur, it
would be fatal and affect one person.  Id.  The Secretary requests that
I uphold the inspector’s gravity findings.  Tr. 143-144.  Respondent agrees with
the inspector’s “unlikely” designation and does not make any arguments as to
the number of persons affected.  Tr. 145.  However, Respondent disagrees that
any injury resulting from the violation would be fatal.  Tr. 47-48, 92.

I
affirm the inspector’s gravity designations.  Inspector Peters determined that
the spreader bar was securely attached to the crane.  Tr. 45-46.  For this
reason, the inspector appropriately designated the probability of injury as
unlikely.  Also, I discount Berry’s testimony that the spreader bar would cause
only a minor injury if it fell on a worker, particularly since he was mistaken
when he testified that the spreader bar was only 163 pounds.  Tr. 92.  Subsequent
credited testimony from Respondent’s witness Assad revealed that the spreader
bar actually weighed over 3.5 times more.  Tr. 118; Ex. R-10.  In the
event of an accident, a 625-pound steel spreader bar could potentially crush
and fatally injure any worker caught beneath it.  Accordingly, I find that this
violation created an unlikely, but fatal risk of injury to one worker.

iii. 
Negligence

Inspector Peters
charged Respondent with moderate negligence in connection with this violation. 
Ex. S-2.  The Secretary requests that the undersigned at least uphold the inspector’s
negligence designation, but notes that the record could support a finding of
high negligence.  Tr. 137.  Respondent made no specific arguments with respect
to negligence in its closing statement, but requested that I vacate the
citation as a whole.  Tr. 147.

I
find that this violation resulted from Respondent’s high negligence.  Inspector
Peters testified that he designated the violation’s negligence as moderate
because Assad and Minchener were unfamiliar with MSHA regulations and had not
performed work at a mine before.  Tr. 38.  However, Inspector Peters explicitly
informed Minchener that walking underneath the suspended spreader bar violated
an MSHA standard.  Tr. 36.  At that point, I find that the operator should have
known of the violative practice.  Yet, Minchener blatantly dismissed the
inspector’s instruction and violated the standard by walking underneath the
spreader bar a second time.  Id.  Respondent offers no other mitigating
circumstances for its crane operator’s brazen behavior in disregarding the inspector’s
instruction concerning the MSHA standard.  Based on a totality of the
circumstances, therefore, a finding of high negligence is appropriate.

iv. 
Penalty Assessment

As previously
discussed, the Mine Act requires the Commission to consider the six criteria
set forth in section 110(i), 30 U.S.C. § 820(i), when assessing a
civil penalty.  I look to the Secretary’s penalty regulations and proposed
assessment as a helpful starting point when independently assessing the
statutory penalty criteria to avoid the appearance of arbitrariness.

The Secretary
proposed that Sims pay a penalty of $100, the minimum penalty amount under the
Secretary’s criteria set forth in 30 C.F.R. Part 100.  Sec’y Pet.  The parties
have stipulated that Sims abated this violation in good faith and that the
proposed penalty will not affect Sims’ ability to remain in business.  Ex.
ALJ-1.  The Secretary’s penalty petition demonstrates that he adequately
accounted for Sims’ size, violation history, and good-faith abatement efforts
in reaching his proposed penalty.  See Ex. S-1; Sec’y Pet.  I affirmed
the Secretary’s gravity findings, but have increased the negligence from
moderate to high.  Because I find that the violation resulted from Respondent’s
high negligence, I determine that a penalty higher than the Secretary’s
proposed assessment is warranted.

Based
on the legal principles outlined above and my consideration of the six
statutory penalty factors, I find that an assessment of $300 is appropriate. 
Accordingly, I assess a civil penalty of $300 against Respondent for the
instant violation.

V. 
ORDER

For the reasons
discussed above, Citation 8819088 is hereby AFFIRMED, but MODIFIED
to increase the level of negligence to from “moderate” to “high.”  In addition,
Sims Crane is ORDERED to pay the penalty amount of $300.00 for this
violation within thirty (30) days of the date of this Decision and Order.[11]

/s/ Thomas P.
McCarthy

Thomas P. McCarthy

Administrative
Law Judge

Distribution:

Daniel
R. McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, 1244
Speer Boulevard, Suite 216, Denver, CO  80204

W.
Ben Hart, CMSP, W. Ben Hart & Associates, 2916 East Park Avenue, Tallahassee,
FL  32301

[1] In this
decision, “Tr.” refers to the hearing transcript; “Ex. ALJ-#” refers to the
ALJ’s exhibits; “Ex. S-#” refers to the Secretary’s exhibits; and “Ex. R-#”
refers to the Respondent’s exhibits.  Exs. ALJ-1, ALJ-2, S-1, S-2, S-3, S-4,
R-1, R-3, R-7, R-8, R-9, R-10, and R-11 were received into evidence at the
hearing.  Tr. 9-11, 60, 75, 104-108, 122-123.  Exs. R-2, R-4, and R-5 were
marked for identification at hearing, but were not offered into evidence.  Tr.
63, 75-76.  Finally, I found Ex. R-6 irrelevant and excluded it from record
evidence.  Tr. 78-79, 101.

[2] In resolving
conflicts in the testimony, I have taken into consideration the demeanor of the
witnesses, their interest in this matter, their experience and credentials, the
inherent probability of their testimony in light of other events, the
corroboration or lack of corroboration for the testimony given, and the
consistency, or lack thereof, within and between the testimony of witnesses.

[3] Peters is a mine
safety and health inspector at MSHA’s Bartow, Florida field office.  Tr. 21. 
Peters has been working at MSHA for the past 19 years, and prior to working at
MSHA, he spent 26 years working in underground coal mining.  Id.  To be
an MSHA inspector, Peters completed a 26-week long training course.   He also attends
refresher training every two to three years. Tr. 22- 23.  His formal education
includes three years in college studying electrical engineering.  Tr. 21.

[4] Inspector
Peters initially estimated that the spreader bar measured 10 feet long and 6
inches in diameter.  Ex. S-2.  However, crane helper, William Assad, subsequently
testified that the spreader bar measured 14 feet long and 8 inches in diameter.
 Tr. 119-11.  Assad is a certified rigger and oiler at Sims and has been
working there for two years.  Tr. 116; Ex. R-11.  He has nine years of
experience working in the crane industry.  Tr. 117.  His training includes both
on-the-job training and an apprenticeship program provided by a local union.  Id. 
Based on Assad’s first-hand experience with the assigned task, I credit Assad’s
testimony and find that the spreader bar measured 14 feet by 8 inches.

[5] Sims Safety
Director, Robert Berry, testified that a 10-foot by 6-inch spreader bar weighed
163 pounds.  Tr. 88.  However, the spreader bar actually measured 14 feet by 8
inches.  According to Assad, a 14-foot by 8-inch spreader bar would weigh about
625 pounds.  Tr. 118; Ex. R-10.  Again, I credit Assad’s testimony based on his
experience with the assignment and find that the spreader bar weighed about 625
pounds.

[6] Minchener is a certified
crane operator at Sims Crane.  Tr. 101; Ex. R-7.  He has been employed at Sims
Crane for five years and has worked in the crane industry for nine years.  Id. 
His training in crane rigging procedures includes on-the-job training and a
four-year apprenticeship program, which covered OSHA and industry standards. 
Tr. 102.   

[7] Peters later
determined that the violation did not meet the criteria for an imminent danger
order and instead issued the instant citation.   Tr. 26; Ex. S-2.

[8] Berry is the corporate
safety director at Sims Crane.  Tr. 55; Ex. R-1.  He has been employed at Sims
Crane for the past seven years and has over 40 years of experience in the crane
industry, 26 of which dealt with crane safety.  Tr. 55.  He is a certified
crane operator and practical examiner.  Id.; Ex. R-1.  He has also
taught crane operating and rigging for the past 20 years.  Tr. 56; Ex. R-1. 

[9] Although my
colleagues decisions are not binding on me, they provide guidance to the extent
their reasoning is persuasive. 

[10] I note,
however, that the cited OSHA regulations are not inconsistent with my finding
that the spreader bar constituted a “load” under 30 C.F.R. § 56.16009. 
First, 29 C.F.R. § 1926.1417(e) provides conditions that must be met in
order for an operator to leave crane controls unattended.  Although the
standard provides an exception for working gear, such as a spreader bar, it
does not explicitly permit standing beneath working gear.  Second, 29
C.F.R. § 1926.1425(b) allows employees to be directly beneath a load in
certain limited situations, including hooking or attaching loads.  However, the
spreader bar in this case was already attached to the crane.  Tr. 24, 29-30. 
Minchener testified that he was in the process of moving the spreader bar to an
area for additional rigging.  Tr. 111-112.  Assad testified that rigging
generally occurred when the spreader bar was suspended at chest to head height. 
Tr. 125.  This testimony and the fact the spreader bar was suspended over 25
feet establishes that neither employee was attaching any objects to the crane
at the time relevant to the citation’s issuance.  Tr. 25, 29, 111.  Lastly, 29
C.F.R. § 1926.1401 provides a definition for the term “load,” which
explicitly includes the weight of any load-attaching equipment, such as a
spreader bar, as part of a load.

[11] 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.