Boart Longyear Company v. Secretary of Labor, MSHA

Plain-English summary

MSHA cited Boart Longyear after a driller worked on a five-foot-high flatbed without fall protection, used a toolbox door for access, operated a truck with a defective backup alarm, and worked without required Part 46 training. Judge David F. Barbour vacated the imminent-danger withdrawal order because the driller was not reasonably likely to fall before finishing the short task. He nevertheless upheld the fall-protection and safe-access violations while reducing their gravity, removed the S&S designation from the backup-alarm citation, and reduced negligence on the training order. The judge assessed $45,600 for the four remaining violations. This amended release corrected clerical errors in the earlier decision, including the total penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.6(a), 56.11001, 56.14132(a), and 56.15005
• Outcome: The imminent-danger order was vacated, four safety and training violations were modified, and $45,600 was assessed.
• Key point: A condition may support an S&S safety violation over continued operations without presenting an imminent danger requiring immediate withdrawal.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

January 9, 2014

BOART LONGYEAR COMPANY,

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

CONTEST PROCEEDINGS

Docket No. WEST 2012-248-RM

Order No.
8605604; 10/25/2011

Docket No. WEST 2012-249-RM

Citation No. 8605605; 10/25/2011

Docket No. WEST 2012-250-RM

Order No. 8605606; 10/25/2011

Docket No. WEST 2012-251-RM

Citation No. 8605607; 10/25/2011

Mine: Durkee Cement Plant

Mine ID: 35-02970 Y12

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

BOART LONGYEAR COMPANY,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2012-422-M

A.C. No. 35-02970-275832 Y12

Docket No. WEST 2012-891-M

A.C. No. 35-02970-287135 Y12

Mine: Durkee Cement Plant

AMENDED DECISION[1]

Appearances:   Bryan Kaufman, Esq., U.S. Department of
Labor, Denver, Colorado, on behalf of the Secretary

Dana Svendsen, Esq., Jackson Kelly,
PLLC, Denver, Colorado, on behalf of Boart Longyear Company

Before:            Judge David F. Barbour

These proceedings are before me based upon four
notices of contest and two petitions for assessment of civil penalty filed
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the
Act”). 30 U.S.C. § 815(d).

These matters concern the
disposition of three orders and two citations issued by the Secretary of Labor
(“the Secretary”) against Boart Longyear Company (“Boart”), for which

the Secretary seeks a total civil penalty of $200,984.00.

Order No. 8605604, contested in Docket No. WEST
2012-248-RM, was issued pursuant to section 107(a) of the Act, 30 U.S.C. §
817(a), which requires miners to be withdrawn from areas where imminent dangers
exist. Civil Penalty Docket No. WEST 2012-891-M involves two alleged violations
of the Secretary’s mandatory safety standards for surface metal and nonmetal
mines, as found in 30 C.F.R. §§ 56 et al. Citation No. 8605605
(contested in WEST 2012-249-RM) alleges a violation of section 56.15005, which
requires that safety belts and lines be worn where there is a danger of falling.
Order No. 8605606 (contested in WEST 2012-250-RM) alleges a violation of
section 56.11001, which requires safe means of access to working places. Civil
Penalty Docket No. WEST 2012-422-M also involves two alleged violations. Citation
No. 8605607 (contested in WEST 2012-251-RM) alleges that a truck backup alarm was
inoperative, in violation of section 56. 14132(a). Order No. 8605608 alleges a
violation of the Secretary’s mandatory training and retraining standards for
miners employed at surface mines, as found in 30 C.F.R. §§ 46 et al. Specifically,
the order charges that a newly hired experienced miner had not been provided with
the training required by section 46.6(a).

A hearing on these matters was held on July
30-31, 2013, in Salt Lake City, Utah. The parties filed post-hearing briefs on
September 20, 2013.

Background

Boart Longyear Company is an independent
contractor drilling company with both a Mining and Energy Section (M&E) and
an Environment and Infrastructure Section (E&I). The E&I section is
further divided into a Rotary Division and a Drilling Division. Generally,
M&E supports mineral exploration, obtaining core samples to determine the viability
of new mine sites, while E&I does environmental work such as locating the
source of ground contamination or checking the integrity of underground water
systems. Tr. 344-45. However, the E&I division also occasionally drills for
samples on mine sites. Tr. 358. In October 2011 Boart was hired by Ash Grove
Cement West, Inc. (“Ash Grove”) to explore for areas with low mercury content
at Ash Grove’s Durkee Cement Plant, a limestone quarry and processing center, in
order to address the Environmental Protection Agency’s concerns regarding the
cement plant’s mercury emissions. Tr. 29, 31.

Though Boart does not now contest that the
drilling operation at the cement plant was subject to MSHA regulations, Tr.
197-98, at the time, Boart believed the project was scientific, and therefore
not subject to MSHA regulations. Tr. 165, 232. The project supervisors and the
drill team for the cement plant project were members of Boart’s E&I Section.
Robert Stadeli, zone manager for the E&I Rotary Division, was involved in
the proposal stage, then Kristian Thordarson, zone manager for the Drilling
Division, took over as the project manager. Tr. 178. Thordarson allegedly was
on site for the first few days, and about once a week thereafter. Tr. 234-35. Doug
Tucker of the Drilling Division was the on-site driller for the project; he has
been a driller since 2000, and started with Boart’s E&I Section in December
2010. Tr. 224. Prior to the Durkee Cement Plant project, Tucker had no
experience on mine sites. Tr. 231. Allen Headman, also of the Drilling
Division, was the driller’s assistant for the project. Tr. 327. The parties
disagree as to whether Thordarson or Tucker was the senior on-site supervisor. Sec’y
Br. at 11; Resp Br. at 20.

Tucker explained that in a typical drilling
operation, two pieces of equipment are involved, a drill rig and a flatbed
truck. First, the drill rig is moved into position and set up to drill. Then,
the flatbed truck is backed toward the drill rig until the catwalk of the drill
rig and the back of the truck provide “porch steps” for access to the flatbed
of the truck and the drill rig. Tr. 241-244. When drilling is finished and the drill
team is ready to move to a new on-site location, the drill rig (a largely self-contained
mobile unit) is moved first, then the tools and drill steel (large pipes) are
loaded and strapped onto the flatbed of the truck. Tr. 249-50. In order to load
the drill steel, a member of the drill team will climb up onto the flatbed, pull
each drill steel toward the cab and roll it toward the edge of the truck, then
repeat, alternating between the left and right edge of the truck so that the
person on the flatbed continues to have a flat working surface. Tr. 319-20. Once
the truck is loaded, it is taken to the new location and backed up to the drill
rig using a spotter. Tr. 250. For the Durkee Cement Plant project, the drill
rig and truck were being relocated every one or two days. Tr. 327.

The bed of the truck in use at the cement plant
was approximately five feet high and eight feet wide. Resp. Br. at 18-19. Boart’s
M&E trucks generally have some built-in fall protection, such as overhead
cables with retractable lanyards, and built in ladders. Tr. 194. However, those
features are not present on Boart’s E&I trucks, including the one in use at
the plant. Tr. 56. It is company policy to conduct a preoperational inspection
of the trucks every day, Tr. 247, though according to Headman, the inspections
are less thorough if the rig is already on site. Tr. 336-37.

On October 25, 2011, Boart had been on site for
approximately 12-15 days. Sec’y Br.

at 18. MSHA Inspector Scott Amos contends the drill was set
up approximately 150 yards uphill from active drilling and blasting, Tr. 33,
though Tucker recalls the distance as ¼ to ½ mile,

Tr. 238. When Amos arrived, the drill rig and flatbed truck
had been separated, and Tucker was on the flatbed moving materials on the
flatbed so that they could be strapped down in preparation for driving the
truck to a new location. Tr. 47-48. He was wearing a hard hat, but no fall
protection. Tr. 47. Amos testified that he observed Tucker standing two to
three feet from

the edge of the truck’s flatbed, on an uneven, slippery
surface, surrounded by tripping hazards. Amos felt that Tucker was in imminent
danger of tripping and falling off the flatbed and severely injuring himself;
Amos therefore asked Tucker to come down from the flatbed, which he did. Tr.
36-41. Amos and Tucker then discussed Tucker’s responsibilities at the mine
site, and upon Tucker’s representation that he was in charge of the on-site
operation, the inspector issued a section 107(a) imminent danger order of
withdrawal to Boart. Tr. 43-44, 37.

Amos and Tucker also discussed Tucker’s method
of climbing onto the flatbed, which involved using the door of a toolbox on the
side of the truck as a step. Tr. 256. Amos then continued the inspection, and
found that the truck’s backup alarm was not in functional condition, Tr. 75,
though Tucker testified that the alarm was working during that morning’s
preoperational inspection. Tr. 269. As a final matter, Amos made some calls after
leaving the mine site to determine whether Tucker had received the required
miner training, and confirmed with both Boart and Ash Grove officials that he
had not. Tr. 135-38.

As a result of his observations
during the inspection, his discussion with Tucker, and his calls regarding
Tucker’s training, Amos issued to Boart, in addition to the imminent danger
order, the following enforcement actions: a section 104(d)(1) citation for
Tucker’s failure to wear a safety belt where there was a danger of falling; a
section 104(d)(1) order for failing to provide Tucker with a safe means to
access the truck’s flatbed; a section 104(a) citation for the Truck’s
inoperative backup alarm; and a section 104(g)(1) order of withdrawal for
failure to provide Tucker with the required training.

107(a) Order No. 8605604 (Docket No. WEST 2012-248-RM)    

Order
No. 8605604 alleges the following:

The foreman was observed working on top of truck #2268. The foreman was
not wearing fall protective gear. The foreman was about 5 feet above ground
level on the bed of the Kenworth truck (serial # 1FUYYSYBAGP 281935). The
foreman was standing at the edge of the bed of the truck. The bed was covered in
pipe, tools, a garbage can, dirt, loose pipe, and debris. Sharp blasted rock
and debris were on the ground under the miner’s work area. Should the miner
fall it would likely expose him to serious or fatal injuries. An oral imminent
danger order was issued to the foreman working on the bed of the truck at 11:45
PST this date. The bed of the Kenworth Truck #2268 is hereby ordered withdrawn
from service.

Gov.
Ex. 1.

Section
107(a) of the Act, 30 U.S.C. § 817(a), authorizes inspectors to order persons
tobe withdrawn from an area where an imminent danger exists. An imminent danger
is defined as “the existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated.” 30 U.S.C. § 802(j). Although
the Commission has cautioned against narrowly construing the term to only
include immediate threats, the Commission has also recognized the obvious tenet
that there must be some degree of imminence to support an imminent danger
order; a hazard must be impending for immediate withdrawal to be required. Island
Creek Coal Co., 15 FMSHRC 339, 345 (Mar. 1993). An inspector’s finding of
an imminent danger should be given strong consideration, but a judge “is not
required to accept an inspector’s subjective ‘perception’ that an imminent
danger existed. Rather, the judge must evaluate whether, given the particular circumstances,
it was reasonable for the inspector to conclude that an imminent danger
existed.” Id. at 346 (finding the inspector’s anticipation of ignition
and explosion as a result of a methane accumulation ‘speculative,’ such that it
was not reasonable to expect the accumulation to result in death or serious
bodily harm).

Imminent danger
orders have been upheld where there was danger of a person falling from a
truck. In Lime Mountain Co., 20 FMSHRC 1192, 1192-95 (Oct. 21, 1998)
(ALJ), the judge affirmed the inspector’s determination that there was an
imminent danger of a fall resulting in serious injury where a miner was
standing on an eleven foot high trailer coated in lime dust, using a compressed
hair hose to clean the trailer with the hose coiled behind him, without wearing
a safety line. In Nelson Brothers Inc., 18 FMSHRC 618, 624 (April 12,
1996) (ALJ), the judge found an imminent danger where a driver was standing
near the edge of a nine foot high tanker truck (i.e. a rounded surface) with no
guard rails or safety line. Here, however, I do not find it reasonable for Amos
to have concluded that there was an impending threat of a fall resulting in
serious harm where Tucker was working five feet off the ground without a safety
line, on a flatbed which was dry, level, and stationary, which contained some
loose materials but allowed moderate room to maneuver, and which was parked on
packed dirt.

The picture that
Inspector Amos painted with his testimony was one in which the flatbed was
covered in trip and fall hazards such that Tucker was likely to lose his
footing at any minute. Amos testified that the flatbed contained loosely or
totally unsecured drill steel (round, smooth pipes) which could shift or roll,
that the drill steel and flatbed floor were covered in mud and bentonite
(lubrication), and that ‘garbage cans and some smaller items and hoses’ were stacked
against the truck cab. In Amos’ opinion the flatbed floor presented a slippery,
unstable, uneven surface without a clear path for movement. Tr. 37-48. Amos
further testified that Tucker was moving two to three feet from the edge of the
truck, standing on and climbing over the drill steel, and was doing these
things while not wearing fall protection. Id.; Tr. 57. In the
inspector’s view, given these circumstances, it was highly likely that Tucker
would fall off the truck if these work practices were allowed to continue. Tr.
86-87; Sec’y Br. at 14.

Inspector Amos also
testified that such a fall could easily have been fatal. In this regard, Amos
stated that MSHA has determined that falls from machinery are a major cause of
fatalities in the nation’s metal and non-metal mines. Tr. 38. Amos also noted that
a 200 pound person who falls six feet will hit the ground with 5,000 pounds of
force, Tr. 49, and commented that fatalities have occurred at heights lower
than six feet, particularly where an individual fell backwards and hit his
head. Tr. 50-51. Amos listed numerous scenarios in which Tucker could have been
fatally injured if he were to fall: Tucker could have landed on a rock; he
could have landed on one of the two sideboards;[2]
he could have landed on the sharp edge of the toolbox and broken his neck. Tr.

55. In sum, the imminent danger order is premised on a determination that
    Tucker could have fallen off the side of the truck and landed on his head or
    neck with fatal force, Sec’y Br. at 13, and that given the frequency and
    history of that type of falling injury, Amos wanted Tucker off the truck before
    a similar accident occurred. Tr. 41.

Boart presents a
much less dramatic, and ultimately more convincing, picture. With regard to the
impending threat of a fall, Boart contends that the drill steel was largely tied
down and orderly, no mud or bentonite was present, and Tucker was standing on a
wide, flat, dry, secure surface. Resp. Br. at 18. Tucker testified that the
weather was dry, and the drilling process in use at the time did not involve drilling
mud because the company was drilling reverse

rotary air holes.[3]
Tr. 259-60. Significantly, a photograph taken at the time of the citation
supports this version of the conditions; though there are some odds and ends
piled near the cab, as well as two or three unsecured sections of pipe and some
loose straps, there is clear space for movement, and no sign of mud, either for
drilling purposes or due to the weather. Gov. Ex. 7; Resp. Ex. A. Furthermore,
Tucker testified that strapping materials down on the flatbed takes about
fifteen minutes, and he had already been doing so for about five minutes when
Amos arrived, thus limiting the time within which he was most likely to trip. Tr.

280. While it is certainly conceivable that a person could trip on one of the
     objects on the flatbed and fall to the ground below, or take a misstep and fall
     off the side of the flatbed, such an event on the flatbed as it then existed –
     level, clear of mud, with room for Tucker to position himself – within the few
     remaining minutes that Tucker would have been up on the truck, would have been
     rare rather than likely.

Boart further
contends that, assuming a fall was to occur, serious injury was theoretically
possible, but highly unlikely. Boart argues that the circumstances required for
serious injury to occur, specifically that Tucker would fall backwards, be
unable to catch himself, lose his hard hat (which Amos admits he was wearing),
and land on his head or something sharp, are simply too speculative. Resp. Br.
at 18. Boart adds that the Secretary has not provided any evidence that serious
injury commonly results from a five foot fall. Resp. Br. at 20.

Again, I find Boart’s
argument persuasive. Most of Inspector Amos’ testimony is indeed speculative; Tucker
could land on a rock (although the evidence does not indicate any large rocks
close to the truck), he could trip in just the right spot to land on a
sideboard or toolbox, or in just the right way to land on his head, and
fatalities have occurred at lower heights. Tr. 55. Amos references MSHA’s
‘Rules to Live By’ report, Tr. 38, which indicates that falls from elevation
accounted for 23 of the 589 mining fatalities between 2000 and 2008. Rules to
Live By Program Priority 24 Standards Report, http://www.msha.gov/focuson/RulestoLiveBy/
Reports/priority24.asp. However, such generalized information does not
support a finding that the specific conditions at issue here constitute an
imminent danger. For these reasons, I conclude that while Inspector Amos’
testimony indicates that a fatal fall from the truck in issue is possible, the
Secretary has not established that it is likely.

An imminent danger
order requires something more than a generalized danger, it requires a
reasonable determination that a given condition creates an impending threat of
serious harm. See, Island Creek Coal Co., 15 FMSHRC at 345-46. I find
that the inspector’s determination regarding the condition at issue was not
reasonable. First, the photographic evidence does not support the inspector’s
determination that Tucker was in imminent danger of tripping and falling, as
the surface of the flatbed at that time was dry, flat, and relatively
unencumbered. Secondly, the inspector’s determination that a fall would be
fatal was overly speculative given the relatively low height of the flatbed,
the very small amount of surface area presented by the sideboards,

and the absence of rocks of any
notable size on the ground below. Tucker falling and seriously injuring
himself in the few minutes it would take to finish his work would simply be too
much of a fluke to consider the risk imminent. Accordingly, the imminent danger
order will be vacated.

104(d) Citation No. 8605605 (WEST 2012-249-RM, WEST
2012-891M)

104(d) Citation No. 8605605 alleges the
following:

The foreman was
observed working on top of the bed of truck #2268. The foreman was not wearing
fall protective gear. The foreman was about 5 feet above ground level on the
bed of the Kenworth truck (serial # 1FUYYSYBAGP281935). The foreman was
standing at the edge of the bed of the truck. The bed was covered in pipe,
tools, a garbage can, dirt, loose pipe, and debris. Sharp blasted rock and
debris were on the ground under the miner’s work area. Should the miner fall it
would likely expose him to serious or fatal injuries. An oral imminent danger
order (8605604) was issued to the foreman working on the bed of the truck at
11:45 PST this date. Doug Tucker, foreman engaged in aggravated conduct
constituting more than ordinary negligence in that he conducted an unsafe act
violating a mandatory standard. Doug stated he had been trained in the use of
fall protection but actively chose not to use it.

Gov Ex. 2. Inspector Amos
found the cited condition was a significant and substantial contribution to a
mine safety hazard (an S&S violation), was highly likely to result in a
fatality to one person, was attributable to a high degree of negligence, and was
the result of an unwarrantable failure to comply with the standard. For the
reasons discussed below, I find that the cited condition was only reasonably
likely to result in lost workdays or restricted duty, rather than being highly
likely to result in a fatality, but I otherwise affirm the citation. [4]

Fact of the Violation

Section 56.15005 requires that safety belts and
lines be worn when persons work where there is a danger of falling.[5]
Boart in effect concedes that Tucker was not wearing a safety belt or line. Therefore
the determination as to whether Boart violated the standard rests on whether
there was a danger of falling. As indicated in the text of the citation, Citation
No. 8605605 was issued as a result of the same conditions as Order No. 8605604,
supra. However, the Secretary’s burden is lower. While I do not credit
inspector Amos’ interpretation of the cited condition as resulting in an
imminent danger, I find that the uncontested facts reflect that there was a danger
of falling, and consequently that Amos properly cited the company for a
violation.

Boart does not contest that the flatbed was
approximately five feet high, or that therewere some loose materials on the
flatbed; rather, Boart contends that working at an elevation of five feet, on a
dry, flat, surface, does not create a danger of falling. Resp. Br. at 19. Respondent
looks for support to a Program Policy Letter issued by MSHA giving weight to a
determination by OSHA that a danger of falling begins at elevations of six
feet. Tr. 20; Resp. Ex. H; PPL No. P12-IV-01. However, the policy letter was issued
after Citation No. 8605605, and more important, it leaves room for site
specific evaluation. P12-IV-01 at 1. In other words, a five foot elevation
is neither inherently safe nor inherently unsafe; site specific conditions must
be taken into account. While the danger of falling was not as extreme as Amos’
testimony indicated, the photographic evidence supports the inspector’s
observations insofar as confirming that some trip hazards were present. It is
also telling that Boart’s Mining and Energy trucks, also with five feet of
elevation, have built in fall protection; it is reasonable to assume that this
would not be the case unless, as the Secretary notes, a reasonable person would
recognize that there is at least some danger of falling while standing on a
flat, five foot high surface. Sec’y Br. at 15. Accordingly, I conclude the
Secretary has proved the violation.

S&S and Gravity

As a general proposition, a violation is
properly found to be S&S if there exists 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).

The Secretary has established the fact of the
violation, and the presence of a discrete safety hazard, namely a danger of
falling, is inherent in that violation. As for the third and fourth factors,
the Secretary contends, for the reasons discussed above in the context of the
imminent danger order, supra, that the cited conditions were highly
likely to result in a fatal injury. Relying on Inspector Amos’ testimony, the
Secretary notes that drillers have job related tasks that would likely
compromise their balance, namely rolling drill steel toward the edges of the
truck, that the flatbed did and would continue to contain obstacles and trip
hazards, and that if a driller were to fall off the side of the truck, especially
backward, the driller could land on his head or neck with thousands of pounds
of force. Sec’y Br. at 16-17, citing Tr. 45-55, 319-20. The Secretary
notes that miners have been killed falling from less than half the height of
the flatbed. Id. Respondent contends that the Secretary has not provided
any evidence that a serious injury resulting from a five foot fall is
reasonable, rather than just possible. Resp. Br. at 19-20.

With regard to the likelihood of a fall, the
Secretary’s allegation that injury is highly likely to occur is largely
theoretical; the Secretary has assumed the presence of significant

slip and trip hazards, such as mud, rolling drill steel, and
a lack of any clear pathway, which the photographic evidence does not support. Gov.
Ex. 7. However, the presence of some trip hazards, such as some unsecured
pipes, some loose straps, and a garbage can, have been established. Gov. Ex 7;
Resp. Ex A. Furthermore, the inspector raised a valid concern that bad weather
would create an increased risk of falling, Tr. 46, and it could also be
reasonably expected that any unsecured pipes would roll if the truck were
parked at an incline at any point during the project. Therefore, I find that a
driller working on the flatbed could reasonably be expected to fall, given
continued mining operations. With respect to the expected severity of any
resulting injury, while I credit Amos’ factual and anecdotal testimony
regarding the ways in which a five foot fall can result in a fatal
injury, I do not credit his conclusion that such a fall is likely to
result in a fatality. However, Amos’ testimony that a miner falling from five
feet lands with thousands of pounds of force, Tr. 49, is sufficiently
convincing to indicate that if Tucker were to fall from the flatbed, he could
reasonably be expected to sustain injuries resulting in lost workdays or
restricted duty, such as severe bruising or a twisted ankle.

The S&S nature of a violation and the
gravity of a violation are not synonymous. The Commission has pointed out that
the “focus of the seriousness of a violation is not necessarily on the
reasonable likelihood of serious injury, which is the focus of the S&S
inquiry, but rather on effect of the hazard if it occurs.” Consolidation
Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). The evidence supports a
finding that the effect of a five foot fall from the flatbed was reasonably
likely to result in lost workdays or restricted duty, and I conclude that the
violation was serious. Accordingly, I affirm the significant and substantial
designation, but reduce the gravity findings from highly likely to reasonably
likely, and from fatal to lost workdays or restricted duty.

Unwarrantable Failure and Negligence

The Secretary has attributed the violative
condition in Citation No. 8605605 to a high degree of negligence and an
unwarrantable failure by the operator. The Commission has summarized the legal
principles for determining whether a violative condition is the result

of an unwarrantable failure:

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

Whether conduct is
“aggravated” in the context of unwarrantable failure is determined by looking
at all the facts and circumstances of each case to see if any aggravating
factors exist, such as the length of time that the violation has existed, the
extent of the violative condition, whether the operator has been placed on
notice that greater efforts are necessary for compliance, the operator's
efforts in abating the violative condition, whether the violation is obvious or
poses a high degree of danger, and the operator's knowledge of the existence of
the violation.

See Consolidation
Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (“Consol”) [further
citations omitted]. All of the relevant facts and circumstances of each case
must be examined to determine if an actor's conduct is aggravated, or whether
mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because
supervisors are held to a high standard of care, another important factor
supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998).

Lopke Quarries,
Inc., 23 FMSHRC 705, 711 (July 2001).

The
parties do not contest the length, extent or obviousness of the violative
condition, or the lack of pre-citation abatement. The points of contention are
whether Tucker was a supervisor, and whether the operator was on notice and/or
had knowledge of the existence of the violation.

With
regard to the length of time the violation had existed, Tucker conceded that he
did not wear fall protection for the entire time the truck was on-site, Tr.
262, a 12-15 day period.

Tr. 90. With respect
to the extent and obviousness of the condition, it is uncontested and obvious
that no form of fall protection had been provided. Prior to Amos’ inspection,
Boart made no effort to abate the condition, despite the availability of Boart
trucks and/or truck designs with built in fall protection. Sec’y Br. at 18; Tr.

194. Finally, the degree of danger has been established via the S&S and
     gravity determinations, above. These factors favor upholding the inspector’s unwarrantable
     failure finding.

In further support of the
unwarrantable failure finding, the Secretary argues that a supervisor, namely
Tucker, was involved in the violation. The Mine Act defines an agent as a
person “charged with responsibility for the operation of . . . or the
supervision of the miners in a coal or other mine.” 30 U.S.C. § 802. Under
Commission precedent, the negligence of an agent is imputable to the operator
or contractor for the purposes of unwarrantable failure. Whayne Supply Co.,
19 FMSHRC 447, 453 (Mar. 1997); Southern Ohio Coal Co., 4 FMSHRC 1458,
1463-64 (Aug. 1982). To distinguish between agents and rank-and-file miners,
the Commission relies upon function rather than job title; an employee is an
agent if the employee’s function is crucial to the mine’s operation and
involves a level of responsibility normally delegated to management personnel. U.S.
Coal, Inc., 17 FMSHRC 1684, 1688 (Oct. 1995). For example, the Commission
has found that a rank and file miner who is assigned by the operator to carry
out required examination duties may be appropriately viewed as an agent of the
operator. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb.
1991).

Amos testified that in his experience inspecting
Boart drilling operations, although there may be an occasional visit from
midlevel management, the driller is the senior on-site representative, the
individual responsible for filling out paperwork and arranging deliveries. Tr.
57-58. Specifically, Amos recalled asking Tucker if he was “the foreman, the
guy in charge of the operation,” to which Tucker said, “Yes, I am.” Tr. 44. Amos
also recalled Headman confirming that Tucker was the person on site who most represented
the company. Id. Tucker’s memory of his conversation with Amos is hazy, but
he conceded that his promotion to driller gave him responsibilities, and that
being the driller means if something goes wrong with the drill it “comes down
on him.” Tr. 306-07. Additionally, Rotary Division zone manager Robert Stadeli
testified that pre-shift examinations and filling out forms were Tucker’s
responsibility, Tr. 219, and that driller’s assistant Allen Headman received
his day-to-day instructions from Tucker, Tr. 181. All of this supports finding
that Tucker was a supervisor.

Boart contends that Drilling Division zone
manager Kristian Thordarson, rather than Tucker, was the on-site supervisor. Resp.
Br. at 20; Tr. 181, 224, 334. However, Tucker’s testimony establishes that work
on the project was taking place on a daily basis, Tr. 244-45, and yet, although
Tucker spoke with Thordarson daily by phone, after the first few days of the
project, Thordarson was only on site once a week. Tr. 234-35. This indicates
that Thordarson was not the on-site supervisor. Respondent also notes that
Tucker was an hourly rather than salaried employee, and had no authority to hire,
fire, or discipline. Resp. Br. at 20; Tr. 182, 231. However, as noted above, it
is the supervisory function rather than the trappings of a position that are
relevant. As the senior on-site Boart employee (of two!), Tucker carried out
certain critical duties that could only be carried out on-site, such as
conducting pre-shift examinations and directing the actions of the only other Boart
employee present. Accordingly, I concur with the Secretary’s finding that, as
the individual trusted to handle the on-site aspects of the drilling operation,
Tucker was the person “charged with responsibility” for the on-site drilling
operation. Sec’y Br. at 11. Thordarson was Tucker’s superior, but Tucker was
the on-site supervisor. And as Tucker was also the individual working without
fall protection, a supervisor was directly involved with the violative
condition, supporting a finding of unwarrantable failure. Sec’y Br. at 19.

With regard to the remaining factors, Boart does
not deny knowledge of the existence of the condition, but denies knowing
the condition constituted a violation, thereby also claiming it had not
been put on notice that greater efforts at compliance were required. Rather,
Boart contends that it had a reasonable, good faith belief that the drillers on
site at the Durkee Cement Plant were subject to OSHA, rather than MSHA,
regulations, and therefore were not required to use fall protection for
elevations under six feet. Resp. Br. at 21. I find that this belief, even if held
in good faith, was not reasonable, and therefore Respondent’s argument for a
mitigating factor is ultimately unconvincing.

The Boart employees involved may indeed have had
a good faith belief that MSHA regulations did not apply. Tucker and Stadeli’s
testimony that when the project started they believed it to be environmental is
supported by the fact that the drill team was from Boart’s E&I section and
was drilling to test for mercury. Tr. 212, 232. Furthermore, Boart claims that
Ash Grove’s representatives told Boart’s representatives at least twice that
the drill team was not subject to MSHA regulations. Resp. Br. at 21. According
to Stadeli, after Boart received the contract purchase order from Ash Grove,
upon noticing that the general terms and conditions referenced MSHA or OSHA
regulations “that might apply,” Stadeli requested clarification from Ash Grove
and was told the drill team would be working solely under OSHA regulations. Tr.

179. Then, at Stadeli’s request, Thordarson confirmed with the Ash Grove
     “safety folks” that the drill team would be working under OSHA regulations. Tr.
180. Thordarson passed this answer to Tucker when Tucker asked if MSHA training
     was required since they were at a mine site. Tr. 300-01. Although he ultimately
     characterized all of this as a “breakdown of communication,” Ash Grove plant
     manager Terry Kirby confirmed to Amos that Boart was under the initial
     impression that its employees were not covered by MSHA regulations. Tr. 165.

However, assuming the project team believed that
MSHA regulations did not apply, Boart was negligent in failing to ensure that
its E&I employees had the correct information regarding MSHA applicability
while working on mine sites. First, the M&E Section was aware of the
requirements of section 56.15005: M&E trucks were fitted with fall
protection, Tr. 56, the M&E Section would have been aware of MSHA’s ‘Rules
to Live By’ Report, and had been recently cited for similar violations. Sec’y
Br. at 18. Second, by the very fact that the question was asked, it is clear
that those involved in the project suspected that MSHA regulations might be
relevant. Contact between the M&E and E&I sections was clearly
feasible, given that abatement of the citation consisted of modifying the truck
at issue to match M&E truck designs. Tr. 194. And yet, Boart management did
not inform the project team that MSHA jurisdiction applied, and the project
team did not follow through on their apprehensions by contacting the M&E Section.
Boart should have known that the condition was a violation, and been on notice
that greater efforts were necessary to comply.

In sum, I find that Boart violated section
56.15005, that the violation was S&S, that the violation was reasonably
likely to result in injuries causing lost workdays or restricted duty,

that the supervisory involvement of Tucker, the length of
time he violated the standard, and the degree of danger posed to Tucker by the
violation support affirming the inspector’s unwarrantable failure finding, and
that Boart was highly negligent.

104(d) Order No. 8605606 (WEST 2012-250-RM, WEST
2012-891M)

Order
No. 8605606 states the following:

The foreman was observed working on top of the bed of truck #2268. The
foreman was provided with but did not utilize safe access. The foreman stated
he climbed up the side of the truck, standing on the toolbox door, then
stepping onto the elevated area. No handholds or handrails were provided. The
foreman was about 5 feet above ground level on the bed of the Kenworth truck (serial

1FUYYSYBAGP281935). The foreman was standing at the edge of the bed of the

truck. The bed was covered in pipe, tools, a garbage can, dirt, loose pipe, and
debris. Sharp blasted rock and debris were on the ground under the miner’s work
area. Should the miner fall it would likely expose him to serious or fatal
injuries. An oral imminent danger order (8605604) was issued to the foreman
working on the bed of the truck at 11:45 PST this date. Doug Tucker, [the] foreman[,]
engaged in aggravated conduct constituting more than ordinary negligence in
that he conducted an unsafe act violating a mandatory standard. Doug stated he
had been trained in the use of safe access but actively chose not to use it. The
bed of the truck #2268 is hereby ordered out of service until it is provided
with safe access and a representative of MSHA has verified a safe means of
accessing the truck is implemented by the contractor.

Gov.
Ex. 3. The order alleges that the cited condition violated 30 C.F.R. § 56.11001, which requires that “[s]afe
means of access shall be provided and maintained to all working places.” The
inspector found the alleged violative condition was S&S, was highly likely to
result in a fatal injury to one person, was attributable to a high degree of
negligence, and was the result of an unwarrantable failure. As discussed below,
the fact of the violation, S&S determination, negligence, and unwarrantable
failure findings will be affirmed, however the gravity will be modified to
reflect that the violative condition was reasonably likely to result in lost
workdays or restricted duty.

Further
Findings of Fact

With regard to Tucker’s actual method of
access during the Durkee Cement Plant project, it is uncontested that Tucker regularly
began his ascent onto the flatbed by stepping onto the horizontal open door of
a toolbox attached to the side of the flatbed truck.[6] Tr. 62, 252. Tucker testified
that he would then have placed his left foot on the flatbed, taken hold of
either the post or the D-ring above his head with both hands, and pulled
himself up into a standing position on the flatbed. Tr. 252, 294-95; Resp. Ex.
A (toolbox door and post circled in red). Tucker conceded he probably would
have pushed some materials out of the way with his foot to create a space to
place his foot. Tr. 299. The Secretary does not credit Tucker’s testimony,
claiming that a soft drink on the toolbox door, and drill steel and garbage near
the truck’s edge, would have made it too difficult to step onto the flatbed,
use the post as a handhold, and pull himself up. Sec’y Br. at 21-22. The
Secretary instead suggests that after stepping on the toolbox door, Tucker pulled
himself up onto the truck without using a handhold, and then crawled on his
hands and knees over loose pipes until he found a clear space to rise to his
feet, also without using a handhold. Sec’y Br. at 21-22. This theory is based
on Amos’ testimony regarding his conversation with Tucker; Amos did not see Tucker
climb onto the flatbed. Tr. 62.

With regard to alternate means of access,
Amos testified that he saw a ladder on the flatbed,[7] and when he asked Tucker why he
had not used the ladder, Tucker replied he hadn’t used it because it was already
loaded onto the truck. Tr. 70-71. Tucker testified that he did not recall
whether or not a ladder was present. Tr. 283. Amos also testified that using
the step at the rear of the truck would have been marginally safer than the
toolbox door, because it was at a more appropriate height.[8] Tr. 73. Tucker noted that he used
the back step when the flatbed was backed up to the drill rig. Tr. 243-44.

Fact of the Violation

Section 56.11001 requires that a safe means
of access be both provided and maintained. Inspector Amos conceded that Boart
provided safe access in the form of the ladder that was located in the
flatbed. Tr. 71. Therefore, the existence of a violation turns on whether Boart
properly maintained a safe means of access. The Commission has
interpreted an operator’s duty to “maintain” safe access as “an on-going
responsibility . . . to ensure that a means of safe access is utilized.” Watkins
Engineers & Constructors, 24 FMSHRC 669, 680 (July 2002) (quoting Lopke
Quarries, 23 FMSHRC at 708). The Commission has further elucidated that the
duty to maintain a means of safe access “at a minimum . . . mandates that
management officials utilize that access, and require other miners to do so.” 23
FMSHRC at 709. Tucker conceded that he regularly accessed the flatbed via the
toolbox door rather than the ladder, and Tucker himself was a supervisor (see
page 11, supra), therefore I conclude that Boart made no significant
efforts to ensure the ladder, an obviously safe means of access, was utilized. Accordingly,
the key factual dispute is whether the toolbox door also constituted a safe
means of access. [9]

The
Secretary contends that the ladder was the only safe means of access, so by
failing to ensure that Tucker used the ladder, Boart failed to maintain a safe
means of access. Sec’y Br. at 20. The Secretary asserts that using the toolbox
door for access was unsafe because the chain holding the door could snap,
Tucker could get his foot caught in the door and trip, he could encounter any
number of fall hazards while pulling himself up onto the flatbed, and even if
he pulled himself up using the posts for handholds, he could lose his grip. Sec’y
Br. at 21-22. Amos noted that the toolbox door did not meet the height and depth
requirements for steps or ladders, and theorized that the door was not strong enough
to bear Tucker’s weight. Tr. 63, 66.

Respondent
contends that the toolbox door was a safe means of access, therefore allowing
Tucker to use that method of access does not constitute a violation. Resp Br.
at 22. Respondent calls the Secretary’s assertion that the chains could snap
mere speculation. Resp. Br. at 22. Furthermore, Tucker testified that he would
feel safer standing on the toolbox door than a wobbly ladder, Tr. 283, and
Stadeli pointed out that by using handholds, Tucker maintained three points of
contact. Tr. 200.

While
Respondent’s arguments may be relevant for determining the likelihood or
severity of expected injury, I find that the Secretary has presented sufficient
evidence of a trip/fall hazard to deem Tucker’s method of access unsafe,
especially given Tucker’s testimony that he had to push material out of the way
to place his foot on the flatbed, Tr. 299, and the fact that a number of Boart
trucks have built in ladders.[10]
Tr. 194. Because Respondent did not ensure that Tucker used a safe means of
access, I find a violation of section 56.11001.

S&S and Gravity

The Secretary alleges that the
cited condition was S&S. The Secretary has
established a violation which contributes to a fall hazard. With regard to the
third and fourth Mathies factors, as will be discussed in more detail
below, Inspector Amos testified that the dangers presented by Tucker’s unsafe
method of access as described in Order No. 8605606 were essentially the same as
those presented by Tucker’s lack of fall protection as described in Citation
No. 8605605, Tr. 106, and accordingly, he found that the condition was highly
likely to result in an injury that could reasonably be expected to be fatal. I
agree that the two cited conditions present very similar dangers, and therefore
find that, as with Citation No. 8605605, the cited condition in Order No.
8605606 was reasonably likely to result in an injury that could reasonably be
expected to result in lost workdays or restricted duty.

The Secretary’s allegation that injury is
highly likely to occur is again largely speculative, particularly the notion
that the chain holding the toolbox door level could snap under Tucker’s weight.
Sec’y Br. at 21-22. However, as Tucker’s means of access involved stepping onto
the flatbed, then the same unsecured pipes and loose straps which posed a moderate
trip hazard once on the flatbed also presented a trip hazard while stepping
onto the flatbed; Tucker admitted that he regularly had to push material out of
the way to make space for his foot when stepping onto the flatbed from the
toolbox door. Tr. 299. Respondent counters that injury was unlikely because
Tucker maintained three points of contact by gripping the post above his head
or the edge of the flatbed while pulling himself up. Tr. 200. However, given
continued mining operations, a situation would almost certainly arise which
could cause Tucker to lose his grip; for example, just as bad weather would
increase the chance of falling once Tucker was on the flatbed, Tr. 46, ice or
water on the handholds would increase Tucker’s risk of falling while pulling
himself onto the flatbed. Accordingly, I find it reasonably likely that, given
continued mining operations, the cited condition would result in a fall injury.[11]

With regard to the expected
severity of the injury, Amos stated that he designated Order No. 8605606 as
likely to result in a fatal injury for the same reasons that he designated
Citation No. 8605605 as likely to result in a fatal injury. Tr. 106. The
finding is therefore again rejected on the basis that Amos’ testimony only
established that a fatality could occur. Based on Amos’ testimony
regarding the force with which a miner falling from five feet would land, as
well as a common sense understanding of the dangers involved with a fall of
between three to five feet,[12]
I find that, like Citation No. 8605605, any injury resulting from a fall while
accessing the flatbed would reasonably be expected to result in lost workdays
or restricted duty. Accordingly, I affirm the S&S designation, but reduce
the gravity findings to reflect that the violative condition was reasonably
likely to result in lost workdays or restricted duty.

Unwarrantable Failure and Negligence

The Secretary contends that Boart’s
failure to ensure that its on-site supervisor and other personnel utilized a safe
means of access, particularly in light of the fact that the company owned
trucks with built in ladders and guardrails, constitutes aggravated conduct
sufficient to establish an unwarrantable failure. Sec’y Br. at 22. I find that
the evidence supports the Secretary’s unwarrantable failure determination.

The strongest elements in favor of an
unwarrantable failure finding are the involvement of a supervisor, and length
of time for which the condition existed. Because Tucker was the individual
cited as utilizing an unsafe means of access, and Tucker is a supervisor (see
pg. 11, supra), a supervisor was directly involved in causing the violation.
This is even more significant because compliance with the cited regulation in
essence mandates that supervisors ensure that other miners use safe access by
setting a good example; Tucker did the opposite. Additionally, the condition
existed for a significant length of time, given that Tucker testified that the
toolbox door was a common method of access. Tr. 252.

Boart again claims there was no knowledge
of the violative condition or notice that greater efforts were required, because
there was a good faith belief that MSHA regulations did not apply. Resp. Br. at

25. For the reasons discussed above in the context of fall protection, I find
    that Boart should have known that the condition was violative, and been on
    notice, because the Durkee Cement Plant project team could have consulted with
    the M&E Division, which was on notice given that there were M&E trucks
    with built-in ladders. See pg. 12, supra. [13]

In Respondent’s favor, I do
note that the condition did not pose an exceedingly high degree of danger. I
also find that the condition was potentially non-obvious; Tucker’s own
willingness to use the toolbox door as a convenient step to access the flatbed,
and his lack of any mishaps using the toolbox door, indicate that a person
could conclude that it provided a sufficiently safe means of access. However,
the balance of factors still falls in favor of an unwarrantable failure
determination, particularly given the involvement of a supervisor in a
violation.

104(a) Citation No. 8605607 (WEST 2012-251-RM, WEST
2012-422M)

Citation
No. 8605607 states the following:

The Kenworth #2268 (Ser# 1FUYYSYBAGP281935) was provided with an
automatically activated reverse signal alarm which was not maintained in
functional condition. The truck is used on narrow roads where backing occurs as
needed for supplying drill steel to the drill rig. The truck has a large blind
spot to the rear. Two miners typically work at the drill pad: one driving the
truck, and one on foot. The truck is used intermittently as needed. Should the
truck back up and a miner on foot be struck, it would likely cause serious or
fatal crushing injuries.

Gov.
Ex. 4. The citation alleges a violation of 30 C.F.R. § 56.14132(a), which
requires that audible warning devices on mobile equipment be maintained in
functional condition. The inspector determined that the alleged violation as
S&S, reasonably likely to result in a fatal injury to one person, and
attributable to a moderate degree of negligence. Respondent admits the fact of
the violation, Resp. Br. at 25, but challenges the gravity and negligence
findings on grounds that the drill team used spotters when reversing the
trucks, and the alarm had been functioning during the pre-operational
inspection. For the reasons below, I find that the cited condition was not
reasonably likely to result in injury.

S&S
and Gravity

The discrete safety hazard contributed
to by a malfunctioning backup alarm is inherent in the concept of an audible
reverse alarm, namely the hazard of a miner being struck by the reversing
vehicle. Boart does not contest that a fatality could be expected if a miner
were to be struck by the subject vehicle. Accordingly, the only contested
element of the S&S criteria is whether there was a reasonable likelihood of
a miner being struck as a result of the nonfunctioning backup alarm. The
Secretary contends that, because the normal operation of the flatbed truck
involves backing up toward a drill rig with a miner standing on the back, it is
reasonably likely that the lack of an audible backup alarm would result in
injury. Sec’y Br. at 24. Respondent contends that injury is unlikely because it
is company policy to use a spotter when backing the truck into place. Resp. Br.
at 26.

The relevant normal mining operations
are as follows. The trucks on site were moved approximately every one or two
days, and moving the trucks necessarily involves backing one truck up to the
other at the new location. Tr. 241-50, 327. The Secretary suggests that the flatbed
truck would also occasionally back up to the drill rig with supplies while the
drill rig was in operation, such that the driller would be standing at the back
of the rig in the truck’s blind spot. Sec’y Br. at 23-24; Tr. 80, 114. Respondent
counters that the truck would never be reversed into place while the drill was
in operation, in part because it would be dangerous, and in part because with a
two person drill team, one would be driving and the other would be acting as a
spotter, leaving no one to operate the drill. Tr. 248; Resp. Br. at 26. Tucker
and Headman both testified that it was company policy to use a spotter, and
described the procedure as follows: Headman would get into the cab, honk three
times, make eye contact with Tucker through the mirror, and Tucker would guide
Headman into the new location via agreed upon hand signals. Tr. 227, 246, 328. Amos
testified that Headman told him a spotter had not been used the last time the
flatbed was backed into place, Tr. 76, though Headman claimed he did not
discuss spotters with Amos, Tr. 329.

In
Qmax Co., Administrative Law Judge Michael Zielinski found that where a
company had a written policy requiring the use of a spotter, and the miners
using the cited truck were in compliance with that policy, the company’s
failure to maintain a backup alarm in violation of section 56.14132(a) was a
purely technical violation that was unlikely to result in injury.

28
FMSHRC 848, 857-58 (Sept. 29, 2006) (ALJ). The decision noted that the spotter
policy was consistent with the intent of the violated standard, which provides
that a back-up alarm is not required where there is an “observer to signal when
it is safe to back up.” Id., citing 30 C.F.R. §
56.14132(b)(1)(iv). The finding in Qmax Co. is applicable and
persuasive. Although Boart did not have a written policy requiring the use of
spotters, I credit Tucker and Headman’s testimony that it was company policy to
use a spotter, especially given the particularity and similarity of their
descriptions. With a spotter in place, injury would be unlikely to occur while
the flatbed truck was reversing, despite the absence of a back-up alarm. Accordingly,
I find that the cited condition is non S&S. However, I find the cited violation
to be serious, given that if injury were to occur, it could easily be fatal.

Moderate Negligence

The Secretary has designated this condition as
attributable to a moderate degree of negligence. Moderate negligence is
attributable where an operator “knew or should have known of the violative
condition . . . but there are mitigating circumstances.” 30 C.F.R. § 100.3(d).
Tucker testified that when he conducted a preoperational check of the truck
around 6:45 a.m. on the morning of the citation, the backup alarm was
functional. Tr. 304-05. Although the Secretary seems to question the adequacy
of the examination because of Headman’s testimony that examinations are less
thorough if a truck is already on site, Tr. 337, Tucker’s contention that the
alarm was functional is somewhat supported by a statement made to Amos by Ash Grove’s
safety director that the equipment was functional before the truck first came
on site. Tr. 77-78. In light of the evidence suggesting that the condition may
not have existed for any significant length of time, I find the Secretary’s
determination of moderate negligence appropriate.

104(g)(1) Order No. 8605608 (WEST 2012-422M)

Finally,
Order No. 8605608 states the following:

Doug Tucker, foreman[,] had not received any training as required for
newly hired experienced miners pursuant to 46.6. The foreman had zero months
mining experience but had conducted similar job tasks before working on the
mine site. The foreman stated he had worked 15 days at the mine without
receiving part 46 mandatory training. The contractor Boart Longyear was aware
of the requirements. Doug Tucker, foreman[,] is hereby ordered withdrawn from
the mine until he receives the required mandatory training. The Federal Mine
Safety and Health Act of 1977 states that an untrained miner is a hazard to
himself and to others.

Gov. Ex. 5. The order alleges a violation of 30 C.F.R. §
46.6(a), which requires that newly hired experienced miners be provided with
training as specified in sections 46.6(b) and (c). The order was issued
pursuant to section 104(g)(1) of the Mine Act, which states that an inspector
who finds “a miner who has not received the requisite safety training . . .
shall issue an order under this section which declares such miner to be a
hazard to himself and to others, and requiring that such miner be immediately
withdrawn from . . . the mine, and be prohibited from entering such mine until .
. . such miner has received the training.” 30 U.S.C. § 814. The Secretary alleges
that the cited condition is S&S, reasonably likely to result in a fatal
injury to one person, and attributable to a high degree of negligence. For the
reasons below, I affirm the citation with regard to fact of the violation,
gravity, and the S&S designation, and reduce the degree of negligence
attributable to Respondent from high to moderate.

Fact of the Violation

A newly hired
experienced miner is simply an experienced miner who is “beginning employment
with a production-operator or independent contractor.” 30 C.F.R. § 46.2(j).[14]
Alternately, a new miner is one who is “beginning employment as a miner . . .
and who is not an experienced miner.” §46.2(i). The Secretary issued the above
citation on grounds that Tucker was an experienced miner because he had been a
driller for over ten years, and had not received the training required for new
hires. Sec’y Br. at 26-27. Respondent admits that Tucker had not received the
required MSHA training, Tr. 301, and concedes that per MSHA regulations, Tucker
was a miner and training was required. Tr. 197-987. However, Respondent
contends that because Tucker had never worked on mine sites previous to his
work at the Durkee Cement Plant, he was not an experienced miner, and therefore
the citation was improperly issued. Resp. Br. at 28.

Given that
the Durkee Cement Plant project was Tucker’s first experience as a driller on a
mine site, Tr. 231, at first glance Tucker may appear to be an individual who
was “beginning employment as a miner.” However, Inspector Amos’ rationale for
designating Tucker as an experienced miner is sound; Tucker had over ten years
of experience with the same drilling skills he was now employing as a miner. Tr.

62. As an experienced driller (now jurisdictionally a miner) beginning
    employment with a new operator, Tucker was required to go through the training
    required by section 46.6.

S&S and
Gravity

By requiring an untrained miner to be
immediately withdrawn on grounds that the miner constitutes “a hazard to
himself and to others,” section 104(g) of the Act essentially defines the
failure to properly train a miner as a significant and substantial violation;
the untrained miner constitutes a hazard sufficiently likely to contribute to a
serious injury to himself or others as to require his immediate removal. Respondent
contends that the gravity should be reduced, because Tucker had received OSHA
training, had significant experience as a driller, and had received specific
on-site training, such that all potential dangers were largely addressed. Resp.
Br. at 29-30; Tr. 225, 236, 303. However, as the Secretary notes, familiarity
with MSHA regulatory standards, as well as training on Miners Rights, are a
crucial component in ensuring a safe working environment, and would likely not
have been covered by Tucker’s non-MSHA training.[15]
Sec’y Br. at 28. The best way to ensure that accidents resulting from
insufficient training do not occur is to ensure that all new hires receive the
MSHA-required training. Accordingly, the gravity findings and S&S
designation for the citation are affirmed.

Negligence

An operator’s conduct constitutes high negligence where the operator “knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.”

30 C.F.R. § 100.3(d). The Secretary suggests that Respondent
knew MSHA Part 46 training was required for Tucker, noting that Headman had
received that training. Sec’y Br. at 29; Tr. 132. However, it is unclear when
and why Headman received the training (it could have been the result of a
previous contract through Boart’s Mining and Energy Division), therefore actual
knowledge cannot be implied. On the other hand, as discussed above, Boart
should have known that MSHA regulations applied. See pg. 12, supra.
Respondent’s belief that Tucker was a scientific worker and therefore immune
from training requirements was not reasonable.

And yet, I
conclude there are a number of mitigating circumstances which, when viewed
together, are sufficient to reduce the degree of negligence attributable to
Respondent. If Amos’ conversations with management personnel subsequent to his
inspection are any indication, Tucker received very mixed messages from Ash
Grove management regarding the necessity of MSHA Part 46 training; Terry Kirby
stated that MSHA training was not required for Boart employees, while Chris
Hughes stated all contractors are generally told to follow MSHA requirements. Tr.
135-36. Furthermore, as discussed above, Tucker had received OSHA training, and
had over ten years of experience and on-the-job training as a driller. Tucker
even recalled receiving on-site training on the proper procedure to follow when
blasting was taking place. Tr. 303. It is also worth noting that proper Part 46
training is provided to Boart’s M&E division employees, and even to E&I
employees when the drilling is clearly related to mining. Tr. 358. In other
words, Tucker’s training was omitted because of a mistaken premise that it was
not required for a driller who was on site to test mercury levels, rather than
reckless disregard of MSHA requirements, and the lack of training did not drastically
increase the level of danger in this particular instance.

Cumulatively, these factors raise strong doubts
that Respondent’s behavior in not providing Tucker with Part 46 training was
highly negligent; it is conceivable that a reasonable person in this situation would
believe it had met its duty of care. Accordingly, the negligence attributable
to Respondent for the violative condition in Order No. 8605608 shall be reduced
from high to moderate.

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).

The parties have stipulated to Respondent’s good
faith in attempting to achieve rapid compliance, and that the assessed
penalties would not affect Respondent’s ability to continue in business. Jt.
Ex. 1, Stips. 7, 8. However, the parties disagree as to the relevant
history of violations and size of Respondent’s business. The Secretary, relying
on Boart’s I.D. page on MSHA’s data retrieval site, designated Boart as a large
contractor with a very high history of past violations. Sec’y Br. at 29-30. Respondent
counters that Boart’s M&E and E&I sections had separate identification
numbers until 2010, and that by looking to the post-2010 combined statistics,
the annual work hours and past history of violations have been unfairly
inflated such that they do not represent the true safety record of the E&I
Section. Resp. Br. at 30; Tr. 349-51, 355. While it is true that the combined
statistics do not accurately reflect the safety record of the E&I Section
alone, it seems only fair that if a contract at a mine site is assigned to the E&I
Section, it should expect to be treated as a mining division for purposes of
violations incurred at that mine site. Accordingly, I find the Secretary to be
justified in calculating the past history and size of Respondent based on the
combined record.

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. In this respect, I find the following
reductions in penalty to be justifiable based on reductions in the gravity of
the violative condition and/or the negligence attributable to Respondent, as
discussed above: The civil penalty for Citation No. 8605605 shall be reduced
from $70,000.00 to $13,300.00; the civil penalty for Order No. 8605606 shall be
reduced from $70,000.00 to $13,300.00; the civil penalty for Citation No. 8605607
shall be reduced from $13,268.00 to $6,000.00; and the civil penalty for Order
No. 8605608 shall be reduced from $47,716.00 to $13,000.00.

ORDER

Consistent with this Decision, IT IS ORDERED that
107(a) Order No. 8605604 in Docket No. WEST 2012-248-RM IS VACATED.

IT IS FURTHER ORDERED that 104(d)
Citation No. 8605605 in Docket Nos. WEST 2012-249-RM and WEST 2012-891M IS
MODIFIED to reduce the likelihood of injury or

illness from highly likely to reasonably likely, and to
reduce the injury or illness that could reasonably be expected to occur, from
fatal to lost workdays or restricted duty. Accordingly,

IT IS ORDERED that a civil penalty of $13,300.00 shall
be assessed for Citation No. 8605605.

IT IS FURTHER ORDERED that 104(d) Order
No. 8605606 in Docket Nos. WEST 2012-250-RM and WEST 2012-891M IS MODIFIED to
reduce the likelihood of injury or illness from highly likely to reasonably
likely, and to reduce the injury or illness that could reasonably be expected
to occur, from fatal to lost workdays or restricted duty. Accordingly, IT IS
ORDERED that a civil penalty of $13,300.00 shall be assessed for Order No.
8605606.

IT IS FURTHER ORDERED that 104(a)
Citation No. 8605607 in Docket Nos. WEST 2012-251-RM and WEST 2012-422M IS
MODIFIED to reduce the likelihood of injury or illness from reasonably
likely to unlikely, and to delete the significant and substantial designation. Accordingly,
IT IS ORDERED that a civil penalty of $6,000.00 shall be assessed for
Citation No. 8605607.

IT IS FURTHER ORDERED that 104(g) Order
No. 8605608 in Docket No. WEST 2012-422M IS MODIFIED to reduce the
degree of negligence attributable to Boart Longyear from high to moderate. Accordingly,
IT IS ORDERED that a civil penalty of $13,000.00 shall be assessed for
Order No. 8605608.

IT IS FURTHER ORDERED that Boart Longyear
pay, within 40 days of the date of this decision, a total civil penalty of $45,600.00
in satisfaction of the four remaining violations at issue in these proceedings.
Upon receipt of timely payment, the captioned contest and civil penalty
proceedings ARE DISMISSED.

/s/
David F. Barbour

David
F. Barbour

Administrative
Law Judge

Distribution: (Certified Mail)

Bryan Kaufman, Esq., U.S. Department of Labor, Office of the
Solicitor, 1999 Broadway,

Suite 800, Denver, CO 80202

Dana Svendsen, Esq., Jackson Kelly, PLLC, 1099 18th
Street, Suite 2150, Denver, CO 80202

[1]
This decision, originally dated December 17,
2013, has been amended to correct clerical errors. In the discussion of Order
No. 8605606, the quote referencing 30 C.F.R. §
56.11001 will change “[s]are means of access” to “[s]afe means of access.”
In the paragraph immediately preceding my Order, the civil penalty I assessed
for Order No. 8605606 is changed from 1330.00 to $13,300.00, and the subsequent
violation is changed from Citation No. 8650607 to Citation No. 8605607. In my
Order, Citation No. 8605607 will be characterized as a 104(a) citation rather
than as a 104(d) citation. Moreover, in my Order, the total civil penalty that
Boart must pay is changed from $33,900.00 to $45,600.00, and the subsequent
phrase “in satisfaction of the four remaining citations” is changed to “in
satisfaction of the four remaining violations.”

[2]
In this context, sideboards are metal rectangles
which are placed along the edge of a flatbed

to prevent pipes from
rolling off the truck. The cited truck appears to have had two sideboards,
approximately eight inches high by two inches deep by two inches wide, near the
front right edge of the flatbed. Tr. 53; Gov. Ex. 7; Resp. Ex. A (circled in
green).

[3]
Drilling mud is a fluid that commonly consists
of bentonite and polymers. Mud Rotary Drilling uses drilling mud to cool the
drill bit, remove cuttings, and stabilize the borehole. Reverse Circulation Rotary
Drilling, on the other hand, uses air flow rather than drilling mud to collect
cuttings. Boart Longyear, Rotary Drilling Services page, http://www.boartlongyear.com/
drilling-services/surface/rotary/ (last
visited Dec. 3, 2013).

[4]
An S&S finding is not inconsistent with
vacating an imminent danger order. The finding of no imminent danger is
primarily based on the fact that Tucker was not likely to fall in the next few
minutes, the time it would have taken him to finish his work. Unlike an
imminent danger order, which accounts for conditions as they will exist only until
the hazardous condition can be abated, an S&S determination allows for
normal changes over time, such as weather and truck location.

[5]
Specifically, section 56.15005 states that
“safety belts and lines shall be worn when persons work where there is a danger
of falling; a second person shall tend the lifeline when bins, tanks, or other
dangerous areas are entered.”

[6]
Rather than a lid which opens upwards, the
toolbox attached to the side of the truck had a front panel ‘door’ which opened
downwards and was supported by chains, such that when the toolbox was open, the
front panel was parallel to the ground. Gov. Ex. 7; Resp. Ex. A (circled in
red).

[7]
Amos testified that the ladder was visible,
though difficult to discern, in the photograph taken of the truck. Tr. 70; Gov.
Ex. 7 (circled in blue). I agree that the ladder is difficult to identify, but
credit the inspector’s testimony that the object circled in the photograph is a
ladder.

[8]
The back step is a metal grating spanning the width
of the rear of the truck. Resp. Ex. A (circled in blue).

[9]
Tucker also accessed the flatbed via the step on
the back of the truck. However, whether the back step was a safe means of
access is not outcome-determinative, given that Tucker testified that the
toolbox door was his usual means of access when the drill rig and flatbed truck
were not parked back to back. Even assuming the back step was a safe means of
access, which Amos contests, Tr. 73, and even if Tucker used the back step and
the toolbox door in equal measure, Boart still allowed Tucker to access the
flatbed via the toolbox door as a matter of course. Therefore, if the toolbox
door was unsafe, Boart failed to ensure that its on-site supervisor used only
safe methods of access.

[10]
As for Tucker’s assertion that he felt safer
using the toolbox than a “wobbly ladder,” Tr. 283, if the ladder was indeed
wobbly, the proper solution would have been to request a sturdier ladder,
rather than to use an alternate but still unsafe method of access. “It was the
lesser of two evils” is not a proper defense to a violation.

[11]
Respondent also contends that injury was
unlikely because Tucker had “probably climbed

the truck like that a thousand times” without
incident. Tr. 206. However, it has long been recognized that “the absence of an
injury-producing event when a cited practice has occurred does not preclude a
determination of S&S.” Musser Engineering, Inc. and PBS Coals,
Inc.,

32 FMSHRC 1257, 1281 (Oct. 2010) (citation omitted).

[12]
It could be argued that injuries sustained from
a fall while accessing the flatbed would be less severe than those sustained
once on the flatbed, because the miner would be falling from a lower height
(the toolbox door). However, the fall could just as easily occur in the final
stages of access, once the miner was already at the height of the flatbed.

[13] Amos suggested more direct knowledge and notice,
testifying that Tucker told Amos he “was trained in safe access but chose to
ignore it.” Tr. 108-09. However, Amos later admitted to paraphrasing what he
was told by Tucker. Tr. 166. I therefore choose not to rely on Amos’ testimony.

[14]
Section 46.2(j) also notes that “Experienced
miners who move from one mine to another,

such as drillers and
blasters, but who remain employed by the same production-operator or
independent contractor are not considered newly hired experienced miners.” While
one could argue that Tucker was not newly hired because he was a long-term
employee of Boart, Tucker was beginning a contract with Ash Grove. Accordingly,
his long term employment with Boart does not prohibit Tucker from being
considered a new hire.

[15]
To provide a relevant example, if Tucker had
been provided with MSHA required training,

he would likely have
been aware that there was no minimum elevation required for a danger of falling
to be present.