Secretary of Labor, MSHA v. Small Mine Development, LLC

Plain-English summary

The case addressed a miner adjusting raised forklift forks, incomplete task training, and a remix truck operated with a badly cracked windshield at Small Mine Development's underground metal mine. Judge Thomas P. McCarthy vacated the forklift-operation citation because adjusting the forks was not repair or maintenance and functioning check valves protected the raised boom against hazardous motion. He upheld the task-training citation as S&S because the miner had not been trained to test those check valves, but reduced expected injury from fatal to lost workdays or restricted duty. He also upheld the cracked-windshield citation as S&S and fatal but reduced negligence from high to moderate because management had ordered a replacement and believed the truck remained usable. Including three settled citations, total penalties were $20,353.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.14105, 57.14211(c), 57.14206(b), 48.7(a)(1), and 57.14103(a)
• Outcome: One forklift citation was vacated, the training and windshield citations were affirmed with modifications, three citations were settled, and total penalties were $20,353.
• Key point: Actual mechanical protection can defeat an unsafe-operation citation, while failing to train a miner to verify that protection may independently support an S&S training violation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

January
30, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

SMALL MINE DEVELOPMENT, LLC,

Respondent

CIVIL PENALTY
PROCEEDINGS

Docket
No. WEST 2011-1172-M

A.C. No.
26-02512-255877 A3V

Docket No. WEST
2012-1171-M

A.C. No.
26-02512-292804 A3V

Mine: Leeville

DECISION
AND ORDER

Appearances:               Alena E. Amundson, Esq. (Trial Counsel) and
Courtney Przybylski, Esq. (Briefing Counsel), U.S. Department of Labor, Denver,
Colorado,

for Petitioner

Charles W. Newcom, Esq., Sherman
& Howard, LLC, Denver, Colorado, for Respondent

Before:                        Judge McCarthy

I. Statement of
the Case

These proceedings are before me based upon two Petitions
for Assessment of Civil Penalties filed pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977 (“the Act”), 30 U.S.C. § 815(d). Three
citations issued by the Secretary of Labor (“the Secretary”) against Small Mine
Development, LLC (“SMD”), remain at issue.[1]

On May 1, 2012, Citation Nos.
8691999 and 8692000 (Docket No. WEST 2012-1171-M) were issued as part of the
same inspection. Citation No. 8691999 alleges that a miner was adjusting the
forks on a forklift in a dangerous manner in violation of section 57.14105
and/or in violation of sections 57.14211(c) or 57.14206(b) of the Secretary’s
mandatory safety standards for underground metal and nonmetal mines. 30 C.F.R.
§§ 57.14105, 57.14211(c), 57.14206(b).[2]
As a general matter, these standards address the hazards associated with
unsecured raised components. Citation No. 8692000 alleges that the same miner
had not been properly task trained regarding the operation and adjustment of
the forklift in violation of section 48.7 of the Secretary’s standards for
training underground miners. 30 C.F.R. § 48.7.

Citation No. 8602339 (Docket No.
WEST 2011-1172-M) was issued during an earlier inspection on April 20, 2011. It
alleges that a concrete remix truck was being operated with a spider-webbed
crack in the windshield in violation of section 57.14103(a), which requires
that windows on self-propelled mobile equipment be maintained to provide
visibility for safe operation. 30 C.F.R. § 57.14103(a).

A hearing was held on April 18-19, 2013
in Sparks, Nevada.[3]
The record was left open for the filing of a joint motion to approve partial
settlement in Docket No. WEST 2012-1171-M and the filing of the parties’ joint
stipulations. Tr. 15, 17.[4]
Both filings were received on May 17, 2013. See Jt. Exs. 1 and 2,
respectively. The parties then filed post-hearing briefs on June 17, 2013.

Based on the entire record,
including the parties’ post-hearing filings and briefs and my observation of
the demeanor of the witnesses, I find the following:

II. Stipulated
Facts

The parties have stipulated to the following
facts:

1.         At
all times relevant to these proceedings, Respondent was engaged in underground
metal mining operations at the Leeville mine (Mine ID 26-02512) in Eureka
County, NV.

2. Respondent’s
   mining operations affect interstate commerce.

3. Respondent
   is subject to the jurisdiction of the Federal Mine Safety and Health Act of
   1977, 30 U.S.C. §§ et seq. (the “Mine Act”).

4.         Respondent
is an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803(d), at
the Leeville mine where the Citations being contested in these proceedings were
issued.

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

6. The
   individuals whose signatures appear in Block 22 of the Citations at issue in
   these proceedings are all authorized representatives of the United States
   Secretary of Labor at the time of the inspection at issue.

7.         It is
agreed that the Citations at issue in the above-referenced dockets were issued
in a timely manner, and while the correctness of the violations alleged in
those citations is in dispute, no claim is made that any improper procedures
were followed in the issuance of those Citations.

8.         The
Citations at issue in these proceedings may be admitted into evidence for the
purpose of establishing their issuance, but not for the truthfulness or
relevancy of any statements asserted therein.

9.         The
proposed penalties will not affect Respondent’s ability to remain in business.

10.       The
certified copies of the MSHA Assessed Violations History reflect the history of
the citation issuance at the mine for fifteen months prior to the date of the
Citations and may be admitted into evidence without objection by Respondent.

11.       The
operator demonstrated good faith in abating the violations.

12.       This
pleading has been reviewed by Charles Newcom [counsel for Respondent] and he has
authorized Alena Amundson [counsel for the Secretary] to apply his electronic
signature to the pleading and to file it.

Jt. Ex. 2.

III. Factual Background

A. May 1, 2012 Inspection

Leeville Mine is an underground metal mine owned
by Newmont Mining Corporation. Respondent, SMD, is a contractor for Newmont and
performs all aspects of mining, including drilling, blasting, loading, and
haulage. Tr. 45-46.

On May 1, 2012, MSHA Inspector Patrick
Barney[5]
performed a spot inspection of the Leeville Mine. Barney was accompanied by personnel
from Newmont, but personnel from Respondent. Tr. 49-50.

1. Citation
   No. 8691999

The core facts surrounding the issuance of
Citation No. 8691999 are largely undisputed. R. Br. at 2. At approximately 9:45
a.m., the inspection party arrived at the 4450 station. P. Ex. 7. Barney
observed SMD employee Antonio Gaytan in the process of adjusting the forks on
the No. 32 Skytrak Forklift to accommodate a smaller load. Gaytan was standing
between the inner fork and the mine rib. The forks were approximately 2½ feet
from the floor, and the engine was running. The front right tire had been
turned in toward the rib. The back right tire had been chocked. The parking break
was set. The forklift as a whole was immobile. The boom controlling the raising
and lowering of the forks, however, was not physically blocked against movement.[6]
At that time, neither Gaytan nor his supervisor, Chad Borresch, knew whether
the forklift had mechanical locks on the hydraulic cylinder (“check valves”) to
prevent the boom from lowering inadvertently. See Sec’y Br. at 8-10; R.
Br. at 3.[7]

Concerned that the boom could lower unexpectedly
in the event of hydraulic failure and cause injury, Barney determined that
Gaytan was adjusting equipment, which was not protected against hazardous
motion in violation of section 57.14105. Accordingly, he issued Citation No.
8691999 alleging a violation of 30 C.F.R. §
57.14105. Tr. 76-77, 83; P. Ex. 1. Citation No. 8691999 alleges the
following:

At the 4450 station there was a miner
adjusting the forks on forklift c/n FL32 while standing between the equipment
and the rib. The equipment was running and there was no operator in the cab. This
citation is issued in conjunction with the 107a imminent danger order #8691998.

P. Ex. 1.[8]
Barney determined that the cited condition was a significant and substantial

contribution to a safety hazard that was reasonably likely
to result in lost workdays or restricted duty to one person as a result of
moderate negligence. The Secretary proposed a penalty of $3,493.

As noted, the Secretary appropriately alleged
before trial that the cited condition violates one of three standards (30 C.F.R. § 57.14105, 30 C.F.R. § 14211(c), or
30 C.F.R. § 14206(b)), pled in the alternative:

30
C.F.R. § 57.14105, cited by the inspector, states:

Repairs
or maintenance on machinery or equipment shall be performed only after the
power is off, and the machinery or equipment blocked against hazardous motion.
Machinery or equipment motion or activation is permitted to the extent that
adjustments or testing cannot be performed without motion or activation,
provided that persons are effectively protected from hazardous motion.

30 C.F.R. § 14211(c), alternatively
pled by the Secretary, states:

A raised component must be secured to
prevent accidental lowering when persons are working on or around mobile
equipment and are exposed to the hazard of accidental lowering of the
component.

30 C.F.R. § 14206(b), also
alternatively pled by the Secretary, states:

When mobile equipment is unattended or
not in use, dippers, buckets and scraper blades shall be lowered to the ground.
Other movable parts, such as booms, shall be mechanically secured or positioned
to prevent movement which would create a hazard to persons.

SMD safety superintendent Jon Nyberg testified
that after the citation was issued, a company mechanic confirmed that the
forklift had operational check valves. Tr. 334. Assistant superintendent
Kimball Rowley testified that check valves are built into all Skytrak model
forklifts, including the cited forklift. Tr. 284-87. The parties stipulated
that check valves are referenced in the maintenance manual for the Skytrak
forklift, but they are not mentioned in the operator’s manual applicable to the
equipment. Tr. 235. No explanation for the omission in the operator’s manual is
present on the record.

Inspector Barney conceded that he
would not have issued the citation if he had been able to confirm that the
forklift had functioning check valves. He contends, however, that the boom must
be considered unsecured against hazardous motion because neither Gaytan nor
Borresch knew whether check valves were present. The check valves were not
tested for functionality at the time the citation was issued. Tr. 71-72, 166,
174-75.

2. Citation
   No. 8692000

After observing the conditions described above,
Barney spoke with Gaytan. Gaytan told Barney that he was adjusting the forks
according to how he had been trained. Tr. 99. Barney interpreted this to mean
that Gaytan had been trained to adjust the forks without first shutting down
the forklift, while standing between the rib and the forks, and while the forks
were raised 2½ feet. Tr. 99-100. Concluding that Gaytan had been trained to
adjust the forks in an unsafe manner in violation of section 48.7, Barney
issued Citation No. 8692000.

Citation No. 8692000 states in
relevant part:

On the 4450 shaft station there was a
miner operating the forklift c/n FL32 that was not task trained adequately as
to the operation and adjustment of that equipment. The miner was working
between the rib and the running piece of equipment with no operator in the cab.
. . .

P. Ex. 4. Barney determined that the cited condition or practice
was a significant and substantial contribution to a safety hazard that was
reasonably likely to result in a fatal injury to one person as a result of
moderate negligence. The Secretary alleges a violation of 48.7(a)(1), which
states that miners assigned to new tasks as mobile equipment operators shall
not perform those new work tasks until the prescribed training has been
completed, and such training “shall include . . . the safe operating procedures
related to the assigned tasks.” The Secretary has proposed a penalty of $11,597
for the alleged training violation.

With regard to training, the record establishes
that Gaytan began his employment at Leeville Mine on April 24, 2012. He
received hazard training on April 25 and then received five days of training on
the No. 32 Skytrak Forklift from his supervisor, Chad Borresch. Such training
covered operation of the forklift, the preoperational checklist, and two days
of supervised operation of the forklift. Tr. 199-203, 212-14, 242-43. Gaytan’s
certificate of training was signed on April 30, 2012, the day before Citation
No. 8692000 was issued. P. Ex. 6.

Gaytan and Borresch testified that
the training covered two methods for adjusting the forks. The first method was
to raise the forks a few feet in the air and slide them by foot. The second
method was to raise the forks to a higher level, tilt the carriage until the
forks were hanging free, and then slide them by hand. Tr. 201, 216, 265. Although
Gaytan was trained to rib and chock the forklift, he was not trained to shut
off the machine before adjusting the forks. Tr. 216-17, 278. Borresch also
testified that Gaytan had been trained to push the forks from the outside to
avoid pinch hazards, and travel around and refrain from stepping over the forks
to avoid tripping hazards. Tr. 270, 275-76.

Gaytan testified that he used the
following procedure to adjust the forks at issue on May 1, 2012. He raised the
forks 2½ feet, turned the wheel into the rib, set the parking brake, alighted
from the driver’s cab, chocked the rear driver’s side wheel (away from the
rib), slid the fork further from the rib and into position with his foot,
walked over the forks, and pushed the fork nearer the rib into place while
leaning against the rib. Tr. 193-95, 207-09. At no point was Gaytan standing
under the forks. Tr. 194. Barney arrived as Gaytan was stepping back across the
forks to check the adjustment from the cab. Tr. 195.

The majority of Barney’s testimony regarding the
alleged training violation focuses on the differences between Gaytan’s method
for adjusting the forks, and the procedures outlined

in the Skytrak Forklift operator’s manual, which Gaytan
concedes was not referenced during his training. Tr. 220. The method for
adjusting forks outlined in the manual includes elevating the forks to five
feet, tilting the forks forward until they are hanging free, and pushing or
pulling to slide the forks closer together or farther apart. Tr. 100-02; P. Ex.
17 at 5-13. The manual also states that shutdown procedures should be followed
before exiting the cab, which include lowering the forks to the ground and
removing the ignition key. P. Ex. 17 at 1-12, 4-3.

Barney attempts to resolve the
apparently contradictory requirements that the forks be raised five feet and
lowered to the ground by stating that if the forks were resting on a block,
they would be raised and at their lowest point. Tr. 64, 67. Barney concedes,
however, that subject to the constraints of the Secretary’s regulations, an
operator may exercise discretionary judgment when dealing with inconsistent
provisions in an operator’s manual. Tr. 144. In this case, however, Gaytan left
the cab with the engine running and the forks were only 2½ feet above the
ground. Tr. 102-05.

The Secretary also argues that Gaytan’s training
was inadequate because he was not trained to perform a pre-shift examination on
the check valves. Sec’y Br. at 21. Gaytan admitted that check valves were not
covered in his training. Tr. 236. In addition, I note that SMD assistant
superintendent Rowley admitted that testing the check valves should be part of
standard pre-operational procedure. Tr. 295. Rowley also testified, however,
that a forklift operator would know if the check valves were not functional or
operational even without testing them because the boom would “bleed off” or
start to lower on its own. Tr. 313.

B. April 20, 2011 Inspection

On April 20, 2011, Barney was assisting with a
regular inspection at the Leeville Mine. Tr. 49-50. While in the main
haulageway, a remix truck pulled out and came close to hitting the inspection
party.[9]
Barney observed a spider-webbed crack in the truck’s windshield. Tr. 117-18; P.
Ex. 9; P. Ex. 11. Barney did not enter the cab of the truck to assess
visibility from the driver’s vantage point. Nevertheless, he testified that the
spider-webbed crack extended across the driver’s head area, when viewed from
directly in front of the truck. Accordingly, Barney determined that the crack
must have interfered with visibility. Tr. 119-20. Barney also expressed concern
that the crack would create a glare in headlights. Tr. 123.

Barney spoke with the driver, who stated that
the windshield had been cracked for about four days, and had been noted in the
truck’s pre-operational checklist for eight corresponding shifts. Tr. 117-18. The
driver also told Barney that the crack had been reported to his shop
supervisor, Bill Hanks, who instructed the driver to operate the truck while
new glass was being ordered. Tr. 117-18. Barney then spoke with Hanks, who
confirmed that he knew about the cracked glass and told the driver to operate
the truck in that condition until the windshield could be replaced. Tr. 120.[10]
When asked whether he was given any mitigating
circumstances for why the truck was left in service, Barney admitted that Hanks
told him in the shop that Hanks thought it was okay to run in that condition. Tr.
134.

Barney issued Citation No. 8602339
to Hanks after concluding that the remix truck had been operated with a cracked
windshield, that the condition was extant for four days, and that shop
supervisor Hanks knew of the condition, but directed that the truck be driven
anyway. Tr. 117; P. Ex. 9. Citation No. 8602339 states:

The MTI Remix Truck c/n T56 was being
operated with a cracked and spider webbed driver side windshield. The condition
had existed and been reported for 4 days (8) shifts. A spider webbed windshield
causes reduced visibility during operation. The Shop Supervisor knew of the
condition and ordered new glass. This truck operates in the vicinity of other
equipment and foot traffic.

P. Ex. 9. The Citation alleges that this condition violates
section 57.14103(a), which states that windows on operator stations of
self-propelled mobile equipment “shall be maintained to provide visibility for
safe operation.” Inspector Barney designated the violation to be S&S
because it contributed to a collision hazard that was reasonably likely to
result in a fatal injury, with one person affected as a result of high
negligence. The Secretary proposed a penalty of $29,529.

IV. Legal
Analysis

A. Citation No. 8691999

1. 30 C.F.R. §57.14105

Under 30 C.F.R. §57.14105, the initial question
presented is whether Gaytan’s adjustment of the forks on the No. 32 Skytrak
Forklift in order to pick up a smaller load constitutes “[r]epair or maintenance
on machinery or equipment.” If so, the power must be off and the
forklift must be blocked against hazardous motion, unless forklift “motion or
activation is permitted to the extent that adjustments or testing cannot be
performed without motion or activation, provided that persons are [still]
effectively protected from hazardous motion.” See 30 C.F.R. §57.14105.

No evidence has been presented that the forks or
boom were broken. In fact, Barney conceded that no repair on machinery or
equipment was being performed. Tr. 81-82. Rather, Barney recalled Gaytan
telling him that he was adjusting the forks in order to carry a smaller load
(as opposed to adjusting the forks to accommodate or fix a problem with the
equipment). Tr. 86. Nor does the Secretary allege that adjusting the forks
constituted “repair.” Sec’y Br. at 11.

Furthermore, no maintenance on
machinery or equipment was being performed. I agree with Respondent that the
act of adjusting forks on the forklift was not maintenance or a task such as an
oil change, changing tires, or replacing a light, which is performed to keep
the forklift in good working order or to correct a deteriorating or
malfunctioning condition. See R. Br. at 5-6. Maintenance is defined as
“the labor of keeping something (as buildings or equipment) in a state of
repair or efficiency: care, upkeep . . .” Walker Stone Co., 19 FMSHRC
48, 51 (Jan. 1997), aff’d 156 F.3d 1076 (10th Cir. 1998) (finding that
dislodging a rock to restore a crusher’s functionality was properly encompassed
under “repair or maintenance”). The Commission has distinguished between
activity “designed to prevent [equipment] from lapsing from its existing
condition or to keep the [equipment] in good repair,” i.e., maintenance and
activity designed to “increase its usefulness.” S. Ohio Coal Co., 14
FMSHRC 978, 982-83 (June 1992) (moving a conveyor belt was not maintenance
since the move was meant to improve rather than preserve functionality), cited
in Walker Stone, 19 FMSHRC at 52.

The Secretary asserts that Gaytan’s activity
should be considered “maintenance” because adjusting the forks to allow the
forklift to carry loads of varying sizes keeps the equipment functioning in a
state of efficiency. Sec’y Br. at 11. Contrary to the Secretary, I find that
adjusting the forks is not an activity designed to maintain the forklift in a
state of repair or efficiency. Rather, it is labor designed to improve or
modify functionality by increasing the variety of loads that the equipment can
accommodate.

Inspector Barney himself testified
that adjusting the forks does not constitute maintenance or repair because it
does not require a qualified mechanic. Tr. 82. Instead, Barney seems to have
divorced the two sentences in section 57.14105, and issued the citation solely
on the basis that Gaytan was adjusting the forks while the equipment was
running and while he was allegedly not protected against hazardous motion. Tr.

83. The Secretary argues that Barney’s opinion as to the definition of
    maintenance is not dispositive. Sec’y Br. at n. 6. Rather, the Secretary argues
    that maintenance was being performed. Therefore, the second sentence of the
    standard can be applied because an
    adjustment to the forks was being made, the forklift was running at the time of
    the adjustment, and such adjustment did not require the forklift to be running.
    See Sec’y Br. at 10-11 (citing Tr. 78, 80, and 83).

Under the plain language of the
standard the second sentence is triggered only if repairs or maintenance are
being performed within the meaning of the first sentence of the standard. The
second sentence operates as an exception to the first sentence, with a proviso.
As discussed above, I find that Gaytan was not performing repair or
maintenance. Therefore, I conclude that section 57.14105 does not apply.

2. 30 C.F.R. § 57.14211(c)

Under 30 C.F.R. § 57.14211(c), the determinative
question is whether the raised boom was “secured to prevent accidental
lowering.” A boom can be secured by either placing a block under the backstop
to physically prevent the component from lowering, or placing a mechanical lock
(such as a check valve) on the boom’s hydraulic cylinder. Sec’y Br. at 13; Tr.

64. The Secretary has recognized that check valves adequately protect against
    the uncontrolled descent of a raised component in the event of hydraulic
    failure.[11]
    Inspector Barney conceded that he would not have issued a citation if he had
    been able to confirm the presence of functioning check valves. Tr. 166, 174.

Since the forks were not physically
blocked, I must determine whether the boom was secured by functioning check
valves. I find that it was.

With regard to the presence of check valves, I
credit the testimony of SMD assistant superintendent Rowley that all Skytrak
model forklifts have built-in check valves. Tr. 284-87.[12]
I also emphasize the parties’ stipulation that check valves are referenced in
the maintenance manual for Skytrak Forklifts. Tr. 235. There is no reason to
believe that the manufacturer omitted check valves from this particular forklift.
With regard to whether the check valves were functioning, I credit the
testimony of safety superintendent Nyberg that prior to the close-out
conference, a mechanic tested the check valves on the No. 32 forklift and found
them to be operational. Tr. 334; R. Ex. 28 at 2 (Nyberg’s prepared statement
read at the closeout conference).[13]

The Secretary emphasizes that neither Gaytan nor
supervisor Borresch knew whether the forklift had check valves at the time the
citation was written. Therefore, the Secretary argues that inspector Barney was
unable to test whether the forklift had functioning check valves before issuing
the citation. Sec’y Br. at 9-10. Similarly, the Secretary suggests that because
Gaytan did not know whether check valves were present, they were not being
“used” and therefore they were not protecting him against hazardous motion. Sec’y
Br. at 13-14.

I agree that it is unwise for a
forklift operator to be unaware of a safety measure built into the forklift,
but this argument has more weight in the context of the alleged training
violation. Section 57.14211(c) only requires actual protection against
hazardous motion. Because I have found that functional check valves were
present, the requirement that raised components be secured against hazardous
movement under section 57.14211(c) was met, regardless of the forklift
operator’s knowledge of the presence of the check valves.

Barney’s failure to test the
functionality of the check valves when issuing the citation does not negate a
finding that they were functional at that time. Citations may be vacated or
modified when subsequent information proves the inspector’s concerns unfounded.
As for the argument that the check valves must be “used” to protect against
hazardous motion, because check valves operate independently and do not need to
be switched on or off, the check valves could be functioning without the
forklift operator’s knowledge. Tr. 306. Thus, operator knowledge that the check
valves were functioning is not necessary for compliance with the standard.

3. 30 C.F.R. § 57.14206(b)

30 C.F.R. § 57.14206(b) requires that “when
mobile equipment is unattended . . . booms [] shall be mechanically secured or
positioned to prevent movement which would create a hazard to persons.”

As a preliminary matter, I find, contrary to
Respondent, that the forklift was unattended. In the mining context, equipment
or areas are defined as “attended” in the “presence of an individual or
continuous monitoring to prevent unauthorized entry or access.” 30 C.F.R.
§ 57.2 (emphasis added). More generally, “unattended” means “lacking a guard,
escort, caretaker, or other watcher.” Webster’s Third International
Dictionary 2482 (1986) (emphasis added).

Respondent contends that because
the forklift was always in Gaytan’s line of sight, it was being monitored, and
therefore attended. R. Br. at 6-8. I disagree. Being attended requires more
than visibility, it requires control. The monitoring miner must be able to
prevent unauthorized access. In this regard, a Commission judge has found that
a truck was unattended despite the mechanic working underneath it, because the
mechanic was not in a position to prevent the truck from moving. Nevada
Cement, 18 FMSHRC 1653, 1655 (Sept. 12, 1996) (ALJ).

Here, Gaytan conceded that while
adjusting the forks, his direct route to the operator’s cab was at least six
feet, and he would have had to travel even farther because his direct route was
blocked by the ribbed front wheel. Tr. 210-11. Because Gaytan was not in a
position to timely reach the controls, I find that the running forklift was
unattended.

Nevertheless, as discussed above in the context
of section 57.14211(c), the boom was mechanically secured via functioning check
valves.[14]
The Secretary again contends that the boom was not secured because Gaytan and
his supervisor did not know whether check valves were present or functional. Sec’y
Br. at 15. For the reasons discussed above, this argument is rejected. As with
section 57.14211(c), section 57.14206(b) only requires actual protection
against hazardous motion, rather than knowledge of protective measures. Because
functioning check valves were present, the requirement in section 57.14206(b)
that the boom be secured when equipment is unattended has been met.

Because I find that adjusting forks does not
constitute repair or maintenance, and the No. 32 Skytrak Forklift had
functioning check valves which secured the raised boom, I find that the
Secretary has not established a violation of any of the three standards alleged
in the alternative. Accordingly, Citation No. 8691999 is vacated.

B. Citation No. 8692000

For the reasons set for the below, I find that
the Secretary established a violation of

section 48.7(a)(1) as a result of moderate negligence. I
also find that the violation was S&S. However, I find that any injury that
would occur would likely result in lost workdays or restricted duty, not a
fatality.

1. The Training Violation

The Secretary argues that Gaytan’s
training was inadequate in two ways: 1) the procedures outlined in the
operator’s manual for the Skytrak Forklift were not followed with regard to
shutting down the forklift and adjusting the forks; and 2) the training did not
cover securing the boom. Sec’y Br. at 21. I find that the failure to follow the
operator’s manual did not render Gaytan’s training inadequate, per se. On the
other hand, the omission of training regarding the check valves and their role
in securing of the boom did constitute a failure to fully train Gaytan
regarding the safe operating procedures related to the forklift.

The Skytrak Forklift operator’s manual states
that operators should not exit the forklift until the proper shutdown procedure
has been performed. P. Ex. 17 at 1-12. This procedure involves seven steps. It
is uncontested that Gaytan applied the parking brake, shifted the transmission
to neutral, and exited the cab safely (steps 1, 2, and 7). Moreover, the
Secretary has not established that Gaytan failed to idle the engine before
exiting, and/or failed to exit safely (steps 4 and 6). Therefore, the only
steps that Gaytan did not follow were shutting off the ignition, and lowering
the forks to the ground (steps 3 and 5). See P. Ex. 17 at 3-4; Tr.
102-05.

The operator’s manual also outlines
a procedure for adjusting the forks. As noted, that procedure involves elevating
the forks to approximately five feet, tilting the carriage forward until the
fork heel is hanging free, standing to the side, and pushing or pulling the
forks to slide them in or out. P. Ex. 17 at 5-13. Gaytan has conceded that the
manual was not discussed or used as a reference during his training. Tr. 220.

The failure to follow procedures set forth in an
operator’s manual is not determinative as to sufficiency of training. See,
e.g., Foothills Materials, 35 FMSHRC 495 (Feb. 2013) (ALJ) (noting that the
failure to follow an operator’s manual is insufficient evidence that the
elements of safe operating procedure were overlooked during training). This is
particularly true in this case where, as discussed below, the procedure that
Gaytan was trained to employ was effective at protecting the miner against
hazardous motion, and the manual is internally inconsistent with regard to the
proper height at which the forks should be set while being adjusted. See
P. Ex. 17 at 3-4, 5-13.

The Secretary alleges that Gaytan’s training was
inadequate in large part because the engine was not shut off before he exited
the operator’s cab, and because he placed himself in a dangerous position
between the rib and a fork. Sec’y Br. at 20-21; Tr. 99-100. Gaytan admitted
that he was not trained to shut down the engine before adjusting the forks, if
the wheel was chocked and the brakes were set. Tr. 216-17. But the Secretary
has conceded that immobilizing the vehicle alleviated any danger of being
pinched between the fork and the rib. Sec’y Br. at 9, n. 4. And Gaytan was
trained to set the parking brake and chock the wheel. Tr. 216-17. Accordingly,
I find that the failure to additionally shut off the engine does not, in and of
itself, constitute a failure to train in safe operating procedures.[15]

The Secretary also suggests that Gaytan’s
training was inadequate because he was trained to raise the forks 2½ feet above
the ground to adjust them. Sec’y Br. at 20. But the Secretary failed to clarify
whether the proper height was on the ground, in accordance with the manual’s
shutdown procedure, or raised five feet, in accordance with the manual’s
adjustment procedure. It is difficult to fault the operator for not complying
with the manual when the Secretary is uncertain how to do so. I also note that
raising the forks to 2½ feet was not the only method for adjustment covered in
Gaytan’s training. Alternatively, he was trained to raise the forks to five
feet and tilt the carriage, the same method suggested in the operator’s manual.
Tr. 201, 265; P. Ex. 17 at 5-13.

Inspector Barney conceded that an operator may
exercise discretionary judgment when dealing with inconsistent provisions in a
manual, subject to the constraints of the Secretary’s safety regulations. Tr.

144. Here, the manual provisions are inconsistent, and the Secretary has failed
     to show that the alternate training methods chosen by the operator, to wit,
     immobilizing the forklift without fully shutting down, and allowing the forklift
     operator to adjust the forks at a height of 2½ feet as well as at five feet, is
     any less safe than the methods provided in the operator’s manual. An operator’s
     primary concern should be addressing all elements of safe operating procedure
     during training, rather than blindly following contradictory provisions in a
     manual.

I agree with the Secretary,
however, that Gaytan should have been trained to conduct a pre-operational
check of the check valves. Sec’y Br. at 21. Assistant superintendent Rowley conceded
that testing check valves should be part of a forklift operator’s standard
pre-operational procedure. Tr. 295. The safety standards at issue clearly
indicate that safe operating procedure requires raised booms to be secured
against hazardous movement. Although Respondent unwittingly complied with the
cited standards through functional operation of the check valves, safe
operating procedure requires an operator to take steps to ensure that the check
valves were present and functioning. Reliance on luck is not a safe operating
procedure.[16]

Gaytan admitted that check valves
were not covered during his training. Tr. 221, 236.

Accordingly, I find that SMD violated section 48.7(a)(1) by
failing to train Gaytan regarding the presence and proper functioning and
testing of the check valves in the Skytrak Forklift.[17]

2. The Violation Was Significant
   and Substantial (S&S)

As a general proposition, a violation is
properly found to be S&S if there is a reasonable likelihood that the
hazard contributed to by the violation will result in an injury or an illness
of a reasonably serious nature. Cement Division, National Gypsum, 3
FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a
violation, the Secretary must prove:

(1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a measure of danger to safety --
contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature. Mathies Coal
Co., 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal Co., Inc. v.
MSHA, 52 F.3d 133, 135 (7th Cir. 1995) (approving Mathies criteria).
An S&S determination must be based on the particular facts surrounding the
violation, and must be made in the context of continued normal mining
operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).

Section 104(g)(1) of the Act states that “a
miner who has not received the requisite safety training . . . [shall be
declared] a hazard to himself and others, and . . . be immediately withdrawn
from the coal or other mine.” 30 U.S.C. § 824(g)(1). Relying on section
104(g)(1), the Secretary contends that such failure to adequately task train
Gaytan constitutes an S&S violation. Sec’y Br. at 22-23.

Initially, I note that Gaytan
received significant training as to the safe operation of the No. 32 Skytrak
Forklift. On April 26, 2012, Borresch showed Gaytan how to operate the boom, parking
brake, and lights; how to adjust the forks; and how to go through the
pre-operational checklist, including checking the oil, parking brake,
transmission, coolant, fuel, and frame. On April 27, 2012, Borresch and Gaytan
did a walkthrough of the pre-operational checklist, and began hands-on
training. Gaytan then operated the forklift for two days under Borresch’s
supervision, prior to executing his certificate of training on April 30, 2012. Tr.
199-203, 212-14, 242-43. I have found that Gaytan’s task training omitted a single
element, testing the check valves during the pre-operational procedure.[18]

In the circumstances of this case,
however, I find that Respondent’s failure to train Gaytan with respect to
operation of the check valves does constitute an S&S violation. Cf. Jim
Walter Res., 28 FMSHRC 579, 596-97 (Aug. 2006) (finding that inadequate
training did not constitute an S&S violation where the operator regularly
instructed its miners in firefighting techniques, but failed to provide on-site
simulated fire drills). The failure to train Gaytan with respect to operation
of the check valves contributed to a hazard which was reasonably likely to
result in an injury. As Rowley testified, if the check valves were to
malfunction, “the boom would drop by itself . . . [and] the forks would curl
forward.” Tr. 313. Barney testified that a crushing injury would result if the
forks were to drop unexpectedly while the forklift operator’s feet were
underneath. Tr. 77. Although Gaytan claims that he did not stand with his feet
under the forks on this particular instance (Tr. 194), given continued mining
operations, a forklift operator likely will spend time standing around or under
the forks and boom of the forklift he is operating. In fact, Gaylan testified
that he walked back across the forks on this occasion, contrary to his
training. Tr. 195, 209, 275.[19]
Accordingly, I conclude that the failure to train Gaytan to perform a
pre-operational check of the check valves contributes to the hazard of
unexpected lowering of the boom in the event that a check valve malfunctions
during continuous mining operations, which is reasonably likely to result in a
serious injury to a limb that is caught underneath the falling boom. Therefore,
the S&S designation for Citation No. 8692000 is affirmed.

Although I find the inadequate task training
violation to be S&S, I reduce the injury that could reasonably be expected
to occur from fatal to lost workdays or restricted duty. The Secretary conceded
in Citation No. 8691999 that the greatest injury which could reasonably be
expected to occur as a result of the boom unexpectedly dropping onto the
forklift operator’s feet would be lost workdays or restricted duty. Sec’y Br.
at 8-9; P. Ex. 1. The hazard here is the same. Accordingly, based on the
particular facts surrounding this violation, the S&S designation is
affirmed, but the injury which reasonably could be expected to occur is reduced
from fatal to lost workdays or restricted duty.

1. Negligence

Moderate negligence is attributable to an
operator who “knew or should have known of the violative condition . . . but
there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Here, Inspector
Barney noted that Gaytan’s task training had been performed for several days
prior to the inspection, but was incomplete, rather than non-existent,
indicating some due diligence on the part of Respondent and agent Borresch. Tr.

115. I find that the Secretary properly considered the training that Gaytan did
     receive as a mitigating factor. Sec’y Br. at 23. Accordingly, I affirm the
     moderate negligence designation.

Respondent asserts that it could not be expected
to know that training with regard to check valves was required, because it was
not mentioned in the operator’s manual. R. Br. at 19. As noted, however, this
is countered by the testimony from Assistant Superintendent Rowley’s testimony
that check valves should be examined as part of the typical pre-operational
procedure. Tr. 295.

4.         Civil Penalty

The Commission outlined the parameters of its
responsibility for assessing civil penalties in Douglas R. Rushford Trucking,
22 FMSHRC 598 (May 2000). The Commission stated:

The principles governing the
Commission’s authority to assess civil penalties

de novo for violations of the Mine Act
are well established. Section 110(i) of

the Mine Act delegates to the
Commission “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§815(a) and 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty,

the Secretary petitions the Commission
to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act requires that,
“[i]n assessing civil monetary penalties, the Commission [ALJ] shall consider”
six statutory penalty criteria:

[1] the operator’s history of previous
violations, [2] the appropriateness of such penalty to the size of the business
of

the operator charged, [3] whether the
operator was negligent,

[4] the effect of the operator’s
ability to continue in business, [5] the gravity of the violations, and [6] the
demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). In keeping
with this statutory requirement,

the Commission has held that “findings of fact on the
statutory penalty criteria must be made”

by its judges. Sellersburg Stone Co., 5 FMSHRC 287,
292 (Mar. 1983). Once findings on the statutory criteria have been made, a
judge’s penalty assessment for a particular violation is an exercise of
discretion, which is bounded by proper consideration for the statutory criteria
and

the deterrent purposes of the Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the de
novo assessment of civil penalties does not require “that equal weight must be
assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co.,
19 FMSHRC 1495, 1503 (Sept. 1997).

Although judges have the authority to assess
penalties de novo, the penalty calculation tables provided in 30 C.F.R.
§ 100.3 provide a useful guide. The parties have stipulated to the operator’s
history of previous violations, that the proposed penalties will not affect
Respondent’s ability to remain in business, and that Respondent has
demonstrated good faith in abating the violations. Jt. Ex. 1, stipulations
9-11.[20]
Accordingly, based on the criteria set forth in section 110(i) of the Act, and
the gravity and negligence findings discussed above, I assess a civil penalty
of $3,143 for the inadequate task training violation found in Citation No.
8692000.

C. Citation No. 8602339

1. The Violation – The
   Spider-Webbed and Cracked Windshield Impaired

Visibility

For the reasons discussed below, I
find the violation, but reduce Respondent’s negligence from high to moderate,
and assess a penalty of $8,893.

At the outset, I note that Respondent
does not dispute that there was a spider-webbed crack in the windshield of the
remix truck. R. Br. at 20. Rather, Respondent disputes the inspector’s
determination that the crack interfered with visibility and safe operation of
the vehicle.

I credit inspector Barney’s
testimony that when he first saw the remix truck he was directly in front of it
and could see that the crack in the windshield “went right across where [the
driver’s] head was,” and “was right in his line of vision.” Tr. 120. A
photograph taken at the time of the Citation supports Barney’s contention that
the spider-webbed crack in the windshield was near the driver’s head. P. Ex.
11.[21]
I also credit inspector Barney’s testimony that the glare from headlights would
likely glint off the crack in the windshield, temporarily blinding the driver. Tr.
123; Sec’y Br. at 25-26; see also Lafarge Midwest, Inc., 32 FMSHRC 1832,
1841 (Dec. 8, 2010) (ALJ) (crediting the inspector’s testimony that glare from
the sun glinting off a cracked windshield would cause the driver to be unable
to see). Just as the glare from the sun combined with the cracked windshield
was found to interfere with visibility in Lafarge Midwest, I find that
the glare from headlights in this underground mine combined with the cracked
and spider-webbed windshield interfered with the driver’s visibility. Accordingly,
I concur with the inspector’s determination that the windshield was not being
maintained to provide visibility for safe operation. Tr. 119.

Respondent’s primary argument is that because
Barney did not sit in the driver’s seat, he could not determine the driver’s
angle of vision or determine whether visibility would be impaired by the
cracked windshield. R. Br. at 22. Barney admitted that he did not sit in the
driver’s seat. Tr. 120. But that admission does not invalidate his determination
that the location of the spider-webbed crack impaired visibility. As a
practical matter, an obstructed sightline is usually obstructed from both ends.
In any event, I find it reasonable for Barney to conclude that the crack was
“right in [the driver’s] line of vision” because Barney stood directly in front
of the truck where he “could see that [the crack] went right across where his
head was.” Tr. 120. Accordingly, I find that inspector Barney’s testimony
concerning the location of the spider-webbed crack in the windshield and the
photograph he took to document it (P. Ex. 11), are sufficient to establish the
likelihood of impaired visibility that diminishes safe operation of the remix
truck.

Respondent argues that a Commission judge in
another case found that the Secretary failed to prove impaired visibility where
the inspector did not sit in the driver’s seat of a truck with a cracked
windshield. R. Br. at 20-22 (citing Walker Stone Co., 17 FMSHRC 1389,
1394 (Aug. 1995) (ALJ)). Although the judge in Walker Stone vacated the
citation, that case is distinguishable because it essentially turned on
credible testimony from the driver of the truck that his vision was not
impaired when he drove the truck with the cracked windshield. Specifically, the
judge stated:

Based on the evidence in this record, most
particularly the photographs of the truck (GX-6 and GX-7), which quite clearly
depict the damage, I conclude that it is insufficient to establish that the
windshield cracks noted by the inspector impaired the operator’s visibility to
any significant extent. In this regard, I also find Mr. Moenning’s testimony
that his vision was not impaired when he drove the truck to be credible. I
also note that Inspector Ramage admitted that he never got into the truck
and looked through the windshield himself to determine whether the cracks would
affect the operator’s visibility. Accordingly, the citation fails of proof and
will be vacated herein.

17 FMSHRC at 1393-94 (emphasis
added). In other words, the inspector’s failure to sit in the driver’s seat was
supplemental evidence supporting a conclusion which was primarily based on
photographic evidence and direct testimony from the driver.

In Lafarge
Midwest, another Commission judge similarly weighed the evidence and came
to the opposite conclusion, finding that the cracked windshield impaired
visibility:

In
the case at hand, the inspector did not sit in the driver’s seat of this
particular gator but he did look through the windshield and Ballard, who drove
the gator daily, testified that the condition of the windshield obscured his
vision . . . .

32 FMSHRC at 1839. In Lafarge
Midwest, primary emphasis was placed on the testimony of the inspector and
the driver, which was sufficient to establish impaired visibility, despite the
inspector’s failure to view the condition from inside the operator’s cab.

In this case,
there is no direct testimony from the driver. Accordingly, the weight of the
evidence hinges on the testimony of the inspector, which I credit, and the
photograph of the windshield, which I find supports the inspector’s
impaired-visibility determination. As in Lafarge Midwest, the
inspector’s failure to view the condition from the driver’s seat alone is
insufficient to rebut the Secretary’s evidence.[22]

Respondent also
challenges the Secretary’s characterization of the width of the crack. Respondent
argues that the photograph does not show the entire windshield, and that
inspector Barney’s notes do not provide any measurements.[23]
R. Br. at 22; Tr. 140-43. I am not persuaded by these arguments. In determining
visibility, the width of a crack is not determinative. A small crack directly
in a driver’s line of sight can be more disruptive than a wide crack along the
top or bottom of a windshield. Although the photograph does not conclusively
establish how far the crack in the windshield extended, it supports the
inspector’s testimony that the spider-webbed crack began in a location
that would impair driver visibility. P. Ex. 11.

In sum, in the
circumstances of this case, I am not persuaded by Respondent’s arguments that
the Secretary failed to meet his burden of proof because Barney failed to
observe the spider-webbed and cracked windshield from inside the operator’s
cab, or because Barney failed to establish the extent of the crack in his
photograph and notes. R. Br. at 22. While it is true that the Secretary bears
the burden of proving each and every element of an alleged violation, Jim
Walter Res., 9 FMSHRC 903, 907 (May 1987), the Secretary meets that burden
by a preponderance of the evidence, i.e., by showing that the existence of a
fact is more probable than its nonexistence. Rag Cumberland Res., 22
FMSHRC 1066, 1070 (Sept. 2000). Here, the Secretary established that driver
visibility was impaired by a preponderance of the credible evidence based on
Barney’s testimony concerning the location of the crack as corroborated by the
photographic evidence establishing that the crack was in the driver’s line of
vision. Tr. 120; P. Ex. 11 cross referenced in R. Exs. 24-25. Respondent’s
counter arguments regarding Barney’s failure to sit inside the operator’s cab
and alleged failure to take adequate photographs and notes are insufficient to
rebut that evidence.

2. The Violation was Significant
   and Substantial (S&S)

Logic
dictates that impaired visibility puts others at risk of being struck by the
remix truck, and that if a miner pedestrian were struck, a fatality would reasonably
be expected to occur. Furthermore, the remix truck was a heavy piece of
machinery and it was driven in an area with numerous draw and dump points and
heavy traffic, both pedestrian and vehicular. Tr. 119, 124-25. Accordingly, I
find that the cracked windshield violation significantly contributed to a
discrete safety hazard (collision) that was reasonably likely to result in injury,
particularly given the high traffic in the area. I further find that such
injury would reasonably be expected to be fatal if a pedestrian was involved. See
Lafarge Midwest, supra, 32 FMSHRC at 1841 (finding an S&S violation
where mobile equipment with a cracked windshield was operated in a high traffic
area). Accordingly, I affirm the Secretary’s determination that the cited
condition was an S&S violation that was reasonably likely to result in a
fatality.

3. Negligence

A violative condition is attributable to high
negligence where the operator “knew or should have known of the violative
condition . . . and there are no mitigating circumstances.”

30 C.F.R. § 100.3(d). Respondent
clearly knew of the violative condition. The cracked windshield had been noted
on the pre-shift examination book for eight shifts and the driver had reported
the condition to his shop supervisor. Tr. 117-18.

When asked
whether he was given any mitigating circumstances for why the truck was allowed
to operate, inspector Barney admitted that shop supervisor Hanks told him in
the shop that Hanks thought it was okay to run in that condition. Tr. 134. Inspector
Barney continued, “I guess you could say that was mitigation. Maybe he did not
realize it was a hazard, maybe he did not realize the severity of the hazard.” Id.
Hanks also ordered a replacement windshield. Tr. 120. In these circumstances, I
am hard-pressed to conclude that Respondent did not offer credible evidence of
some mitigating circumstances.

The Secretary
argues that Hanks’ statement through the hearsay admission of Barney that he
thought that it was okay for the truck to be driven until the replacement
window arrived, should not be considered a mitigating circumstance and should only
remove the cited condition from the realm of an unwarrantable failure. Sec’y
Br. at 27; cf., Lafarge Midwest, supra, 32 FMSHRC at 1843 (finding an
unwarrantable failure where the driver and other miners “constantly made
complaints that went unheeded” for at least six months). I do not agree.
Barney candidly admitted that Hanks told him that “he thought it was okay to
run in that condition.” Tr. 134. Furthermore, the record reveals a legitimate
dispute as to whether the crack would impair visibility. In these
circumstances, the Secretary’s position gives insufficient credit for Barney’s
own admission of evidence of mitigation. Moreover, it results in a
significantly increased penalty where credible evidence of mitigation exists. Hanks
should have taken the truck out of service until the windshield was replaced,
rather than playing the odds. But Barney’s own hearsay testimony supports
Respondent’s case for mitigation. Accordingly, I reduce Respondent’s negligence
from high to moderate.

4. Civil Penalty

As noted above, the penalty calculation tables
provided in 30 C.F.R. § 100.3 provides a useful guide. Given the parties’
stipulations regarding Respondent’s ability to remain in business and its good
faith in abating the violation, and based on my moderate negligence finding
above, I reduce the proposed penalty of $29,529 and assess a civil penalty of $8,893
for the cracked windshield violation in Citation No. 8602339.

V. ORDER

WHEREFORE, the parties’
motion to approve partial settlement in Docket No. WEST 2012-1171-M is
GRANTED. Consistent with the parties’ settlement terms, it is ORDERED
that Citation No. 8692424 be MODIFIED to reduce the likelihood of injury or illness from “reasonably likely” to “unlikely,” and to delete the significant
and substantial designation. It is further ORDERED that Citation No.
8692428 be MODIFIED to reduce the injury or illness that could
reasonably be expected to occur from “fatal” to “lost workdays or restricted
duty.”

Consistent with this Decision, it
is ORDERED that Citation No. 8691999 in Docket No. WEST 2012-1171-M is VACATED.
It is further ORDERED that Citation No. 8692000 in Docket No. WEST
2012-1171-M is MODIFIED to reduce the expected injury or illness from
“fatal” to “lost workdays or restricted duty.” It is further ORDERED that
Citation No. 8602339 in Docket No. WEST 2011-1172-M is MODIFIED to
reduce the level of negligence from high to moderate.

Accordingly, Respondent, Small Mine Development,
LLC, is ORDERED to pay, within thirty days of the date of this decision,
a total civil penalty of $20,353 in satisfaction of the six Citations at issue
in the above-captioned dockets.[24]

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Courtney Przybylski, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708

Charles W. Newcom, Esq., Sherman & Howard, LLC, 633
Seventeenth Street, Suite 3000, Denver, CO 80202

/tmw

[1] The above-captioned dockets involve a total of six
citations. Docket No. WEST 2012-1171-M contains five citations. Docket No. WEST
2011-1172-M contains a single citation. The parties have filed a joint motion
to approve partial settlement for three of the five citations at issue in Docket
No. WEST 2012-1171-M. Jt. Ex. 1. The parties propose a reduction in total civil
penalty, from $12,421 to $8,317 for the three citations. The settlement terms
include deleting the significant and substantial designation, and reducing the
likelihood of injury or illness from “reasonably likely” to “unlikely” for
Citation No. 8692424. The settlement terms also include reducing the injury or
illness which could reasonably be expected to occur, from “fatal” to “lost
workdays or restricted duty” for Citation No. 8692428. Respondent has agreed to
accept Citation No. 8692426 as written with the corresponding proposed penalty.
Having considered the representations and documentation submitted in this
matter, I conclude that the proffered settlement is appropriate under the
criteria set forth under section 110(i) of the Act. Accordingly, the motion to
approve partial settlement is granted.

[2] The Secretary’s Motion to Plead in the Alternative
was granted during a March 5, 2013 conference call. Tr. 10.

[3] During the hearing, Petitioner’s Exhibits 1-12, 15,
17, and 18, and Respondent’s Exhibits 1-19 and 23-27, were received into
evidence. Tr. 20.

[4] As noted, I have reviewed the parties’ joint
settlement motion and I approve the parties’ partial settlement agreement set
forth in Jt. Ex. 1 as consistent with the criteria set forth in section 110(i)
of the Act and in furtherance of the public interest.

[5] Barney has been an inspector with MSHA’s Elko, Nevada
field office since February 2011. Tr. 41, 44.

[6] The forks are raised and lowered via the boom, which
functions on hydraulics. The boom is connected to the forks via a backstop, a
horizontal bar between the forks, which also prevents loads from shifting when
the forks are raised at an angle. Tr. 68. In order to prevent raised forks from
lowering unexpectedly, the backstop can be rested on a block between the forks.
Tr. 64.

[7] The boom is extended by pumping oil into a hydraulic
cylinder, which increases pressure in the system. The boom is collapsed by
sucking oil out of the cylinder, which relieves pressure in the system. Check
valves prevent inadvertent movement in hydraulic systems by preventing oil from
leaking out of the cylinder. Tr. 288, 306. Because check valves are usually
located inline on the hydraulic cylinder, they are generally difficult to
detect during inspections. Tr. 164, 289-90.

[8] Upon first observing Gaytan standing between the
forks and the rib, Barney issued an imminent danger order pursuant to section
107(a) of the Act. Respondent has not contested that Order. Tr. 51. Commission
precedent makes clear, however, that the failure to contest an imminent danger
order does not provide a basis for establishing the validity or S&S nature
of a related citation because an operator may decide not to contest an imminent
danger order for any number of reasons. See, e.g., Wyoming
Fuel Co., 16 FMSHRC 1618, 1625-26 (Aug. 1994) (finding no legal authority
for the judge’s conclusion that an uncontested imminent danger order has a
preclusive effect with regard to an S&S designation for a related
citation); id. at 1632 (Commissioners Doyle and Holen, concurring in
part and dissenting in part) (noting that issues must be previously litigated
to have preclusive effect).

[9] The remix truck was carrying shotcrete (concrete conveyed
through a hose at high velocity), which was delivered from the surface through
a slickline (tubing for a pumping system). The remix truck had just pulled out
into the main haulageway from the slickline dump point, when inspector Barney
observed it. Tr. 124-25. The main haulageway had a number of dump and draw
points, and a large amount of foot and equipment traffic. Tr. 124-25, 119.

[10] Barney testified that he was not shown a purchase
order for the new windshield. His testimony did not address whether he asked to
see a purchase order. Tr. 120.

[11] 30 C.F.R. § 57.14211(d) states that “under this
section, a raised component of mobile equipment is considered to be blocked or
mechanically secured if provided with a functional load-locking device . . . .”
MSHA’s Program Policy Manual reiterates that check valves will prevent
uncontrolled descent in the event of a failure of the system holding up a
raised component. P. Ex. 15.

[12] Rowley testified that he had operated a number of
Skytrak forklifts, including the No. 32, and all of them had check valves. Tr.
284-87. Rowley further testified that check valves can be hard to spot, though they
are visible on the Skytrak model if you know what you are looking for, namely,
two screw caps on a box on the back side of the boom hydraulic cylinder. Tr.
289-90. Although Inspector Barney testified that when he looked over the
forklift while waiting for the supervisor he did not see any “obvious ball
valves or check valves,” he concurred that check valves are difficult to spot
and that he could not be sure from his cursory review whether or not this
forklift had check valves. Tr. 162, 164, 166.

[13] This finding of functionality is bolstered somewhat
by Rowley’s testimony that malfunctioning check valves would be obvious because
the hydraulic system would begin to lose pressure and the boom would begin to
lower on its own (“bleed-off”). Tr. 292, 313. Rowley further testified that
even if the operator did not know what was causing the problem, he would be
able to tell that there was a problem with the hydraulics, and would likely
stop operation. Tr. 313. Neither Barney nor Gaytan testified about any
bleed-off of the boom on the day the citation was issued.

[14] As noted above, section 57.14211(d) of the
Secretary’s regulations and MSHA’s Program Policy Manual both state that raised
components are considered mechanically secured if a functioning check valve is
present. Although the regulation and guidance explicitly apply to section
57.14211(c), because sections 57.14211(c) and 57.14206(b) address essentially
the same hazard (the danger posed by uncontrolled movement of raised components
such as booms), I conclude that the check valves provide the same safe harbor
under section 57.14206(b) because they sufficiently secure the boom to prevent
movement which would create a hazard to persons.

[15] Additionally, given the inconsistency between the
manual’s procedures for shutting down the forklift, which state that the forks
should be lowered to the ground, and its procedures for adjusting the forks,
which state that they should be raised to five feet, it is unclear whether the
shutdown procedure is even meant to apply when adjusting the forks.

[16]
Alternatively, if the forklift did not have
check valves or built-in mechanical locks, Gaytan’s training should have
included methods for physically blocking a raised boom against hazardous
motion.

[17]
Respondent asserts that check valve training was not required because check
valves were not mentioned in the manual. R. Br. at 19. I disagree. The omission
of certain training in a manual does not mean that miners need not be trained
in that element, particularly if necessary to ensure safe operation of certain
machinery or equipment.

[18] The Secretary contends that the gravity of the
violation is compounded by additional elements which were omitted from Gaytan’s
training, namely, the failure to turn off the engine, and the failure to leave
sufficient space between the forks and the rib. Sec’y Br. at 22. The failure to
turn off the engine is immaterial here because no repair or maintenance work
was being performed under section § 57.14105. Therefore, that standard, which
requires that the engine be turned off and the machinery or equipment be
blocked against hazardous motion, is inapplicable. Furthermore, Gaytan’s
training included alternate ways to immobilize the equipment (ribbing and
chocking), which Barney conceded was sufficient to immobilize the forklift and
allay his concern that Gaytan could have been pinned between the rib and the
equipment. Tr. 77. Therefore, I conclude that injury was not reasonably likely
to result from failing to turn off the engine or leave space between the forks
and the rib.

[19]
Thus, the procedure to adjust the forks that
Gaytan actually employed included an unsafe element that contradicted
Gaytan’s training. Gaytan stepped over the forks while adjusting them. Tr. 209.
Supervisor Borresch credibly testified that Gaytan was trained not to
step over the forks, as that presented a tripping hazard. Tr. 275. Because
stepping over the forks was not part of Gaytan’s training, however, there was
no inadequate task training violation that contributed to the associated
tripping hazard or otherwise compounded the gravity associated with Citation
No. 8692000.

[20] MSHA’s originally proposed penalty of $11,597 did not
include a 10% reduction for good-faith abatement pursuant to MSHA’s penalty
proposal criteria. See 30 C.F.R. § 100.3(f). The parties, however, have
stipulated that Citation No. 8692000 was abated in good faith. Accordingly, I
apply a 10% reduction to the penalty assessment.

[21] Although Barney’s photograph (P. Ex. 11) does not
show the entire windshield, I find the proximity of the crack to the center of
the driver’s-side windshield wiper provides a useful frame of reference that
supports Barney’s testimony. See R. Exs. 24 and 25.

[22]
As indicated in the above-cited cases, a direct and credible statement from the
driver that his visibility was unaffected may have been enough to change the
outcome in Respondent’s favor. The Secretary contends that because the driver
and former shop foreman Hanks were not called to testify on this issue, the
undersigned should infer that if they had been, their testimony would have been
adverse to Respondent, and that I should draw an adverse inference from
Respondent’s failure to call such witnesses. Sec’y Br. at 26 (citing the
missing witness rule discussed in Eagle Energy, Inc., 23 FMSHRC 1107,
1119-1122 (Oct. 2001)). I decline to draw an adverse inference here,
particularly since Hanks is no longer employed by Respondent, and the driver
could have been deposed or subpoenaed by either party. Rather, as noted, I find
that inspector Barney’s testimony and the photograph he took to document the
crack (P. Ex. 11), are sufficiently credible to establish impaired visibility.

[23] Specifically, the Secretary alleges that the crack
extended ¾ of the width of the windshield or approximately 18 inches (Sec’y Br.
at 24), while Respondent counters that the crack may have been as narrow as ¼
of the width of the windshield or 6 inches (R. Br. at 21).

[24]
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.