Secretary of Labor v. Boart Longyear Company

Plain-English summary

A Boart Longyear mechanic used a forklift and rigging to hold a 500-pound transfer case while removing fittings at an underground gold mine. Judge Richard Manning credited testimony that the forklift was shut down, the mechanic was not under its forks, and the transfer case was low and stationary. He vacated the suspended-load citation because elevated forks were not themselves a load suspended from above and the mechanic was clear of the rigged transfer case. He nevertheless found a tag-line violation because the mechanic used his hand to steady the suspended case after removing the tag line, but modified it to non-S&S and moderate negligence with a $275 penalty. The judge also vacated the task-training withdrawal order because Boart proved that the mechanic had received job-hazard, annual refresher, and other relevant training.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.16009, 57.16007(a), and 48.27
• Outcome: Citation No. 9379548 and Order No. 9379555 were vacated; Citation No. 9379549 was modified to non-S&S and moderate negligence with a $275 penalty.
• Key point: A raised forklift fork is not necessarily a suspended load, but a tag line is required when a worker steadies a separately suspended load by hand.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

Office of
Administrative Law Judges

721 19 th
Street, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

February 24,
2020

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

BOART
LONGYEAR COMPANY,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2019-0297-M

A.C.
No. 26-02512-485389 Y12

Leeville
Mine

DECISION

Appearances:               Luis
Garcia, Esq., Office of the Solicitor, U.S. Department of Labor, Los Angeles,
California for Petitioner;

Dana M.
Svendsen, Esq., Sherman & Howard L.L.C., Denver, Colorado for Respondent.

Before:                                    Judge
Manning

This case is
before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(“MSHA”), against Boart Longyear Company (“Boart”) pursuant to sections 105 and
110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820
(the “Mine Act”). The parties presented testimony and documentary evidence at a
hearing held in Elko, Nevada, and filed post-hearing briefs. Two section 104(a)
citations and one section 104(g)(1) order, with a total proposed penalty of
$82,886.00, were adjudicated at the hearing. [1]
Boart was a contractor working at the Leeville Mine, an underground gold mine
in Eureka County, Nevada. For reasons set forth below, I vacate Citation No.
9379548 and Order No. 9379555 and modify Citation No. 9379549. Although I have
not included a detailed summary of all evidence or each argument raised, I have
fully considered all of the evidence and arguments. Further, my findings and
conclusions are restricted to the particular facts of this case.

The Secretary
bears the burden of proving a violation by a “preponderance of the evidence.” RAG
Cumberland Resources Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000). In order to
satisfy his burden the Secretary must convince the court that the existence of
a fact is more probable than not. Id . “If the Secretary fails to meet
this burden then there is no violation, irrespective of any counterarguments.” Sims
Crane , 41 FMSHRC 393, 396 (July 2019). 

I.  DISCUSSION
WITH FINDINGS OF FACT

AND CONCLUSIONS
OF LAW

On January 14, 2019, Juan Sarabia, [2]
a floor mechanic for Boart, was tasked with traveling from Boart’s Salt Lake
City shop to the Leeville Mine, an underground gold mine operated by Newmont
Gold, to replace a transfer case in a pump rig. Tr. 311, 318. Sarabia loaded
the oil-filled replacement transfer case [3]
into his vehicle and traveled to the mine. Tr. 179, 319, 381.

Upon arrival at the mine around noon,
Sarabia, along with other Boart crew members, gathered in the “doghouse” [4]
to prepare the Job Hazard Analysis whiteboard (“JHA board” or “the board”) for
the task of changing out the transfer case. Sec’y Ex. 18; Tr. 132, 178, 315,
318-319, 410. Preparing the JHA board involved the entire crew discussing and
documenting on the board the hazards and risks associated with the task of
replacing the transfer case and how they planned to mitigate against such. Tr. 162,
163, 165, 315, 317, 370-371, 408-409, 429. The group covered suspended loads and
the use of taglines, as indicated by the text on the board. [5]
Sec’y Ex. 18; Tr. 164, 371, 372, 408, 424. Boart has a JHA board for every mine
site job and the crew always completes the board before beginning a job and
revisits the board each morning during a job. Tr. 165, 372, 408-409, 447-448. After
completing the board that morning, the crew moved the replacement transfer case
from Sarabia’s truck to an area behind the pump rig and then removed the old
transfer case from the rig before retiring for the evening. [6]
Tr. 178, 316, 322, 361.

Sarabia arrived at the mine the
following morning, January 15, around 7:00 AM. Tr. 323. Like the day before, he
and the other Boart crew members gathered in the doghouse to review the board
and discuss hazards involved with installing the replacement transfer case. Tr.
179, 323, 380, 381, 429. After reviewing the board, the crew threw salt around
the worksite because snow had fallen overnight and accumulated on the ground
and equipment. Tr. 324, 360, 401. Sarabia testified that there was snow on the forks
of the forklift that morning. Tr. 360. The crew then went about their various
tasks for the day.

Sarabia’s task included removing multiple
fittings from the replacement transfer case in order to fit the case into the
pump rig. Tr. 382, 391. Given the weight of the case, approximately 500 pounds,
Sarabia was concerned that moving the case while it was on the ground would expose
persons to pinch point hazards. Tr. 383. As a result, he planned to use a
forklift to suspend the case above the ground so he could position the case to
remove the fittings before draining the oil. Tr. 382, 391, 392.

Sarabia, along with other crew members, rigged
nylon straps to the replacement transfer case. Tr. 361, 366. After rigging the
case and moving the forklift into position, the crew attached the other end of
the rigging straps to the left fork of the lift. [7]
Tr. 326, 345, 361, 362, 404. According to Sarabia, he chose to suspend the case
from the left fork because it allowed him to be in the best position to have
face to face communication with the fork lift operator and also be able to see whether
the lift operator’s hands were off the lift controls. [8]
Boart Ex. B p. 3, 4; Tr. 392, 404. At that point, only Sarabia and Juan Ortega,
the lift operator, were working on the task. Tr. 116, 313. Sarabia discussed
with Ortega the hand signals he planned to use while moving the case and how the
two of them needed to be able to maintain eye contact. [9]
Tr. 383-384.

Ortega raised the forks, thereby lifting
the rigging and transfer case off the ground. Tr. 327, 399. After picking up
the case, which was behind the pump rig, Ortega drove the lift around a series
of barricades to the side of the rig. [10]
Tr. 361, 409. Sarabia used an attached tagline to prevent the case from rocking
back and forth while it was being moved. Tr. 362. After moving the case into
position, Ortega showed Sarabia that his hands were no longer on the lift controls,
indicating that Sarabia could go to work. [11]
Tr. 281, 384, 388. The forklift was parked, the tagline was removed, the lift’s
outriggers were dropped to the ground, and the transfer case was lifted approximately
two to three feet off the ground, i.e., roughly knee height according to
Sarabia, above a bucket that would catch oil released during the task. [12]
Tr. 141-142, 188-189, 327, 328, 333, 338, 353-355, 362, 385, 388, 395, 400, 403.
The forklift was powered off. Tr. 384-385, 387-88, 395, 400.

Sarabia, who was standing on the left
side of the forks so that he could maintain eye contact with Ortega in the cab,
placed his left hand on the transfer case to prevent it from moving and began
the process of removing the fittings, which required the use of a pipe wrench
in his right hand. Tr. 282, 327, 329, 332, 344, 345, 355, 386, 390-391, 403. Boart
introduced the photographs in Boart Ex. B, which were taken in its Salt Lake
City shop, to illustrate the position of Sarabia’s body as he was preparing to
remove the fittings. Shortly after beginning that task, but before draining any
oil, Sarabia heard someone yell “[y]ou stop working, you’re dangerous, you can
die.” Tr. 326, 332, 395, 402. Sarabia immediately stopped what he was doing and
walked over to the individual who was yelling at him. [13]
Tr. 329, 348, 403. The individual, MSHA Inspector Amanda Gonzalez, [14]
asked Sarabia to get his supervisor. Tr. 329-330.

Gonzalez’s recollection is substantially
different. She testified that she traveled to the Leeville Mine on January 15
to conduct an EO1 underground inspection. Tr. 20. She initially drove to the
mine’s safety administration office (the “safety office”), went in, and told a
member of Newmont’s safety department that she was there to conduct health
sampling and finish an underground inspection. Tr. 20. After attaching sampling
pumps to some of the miners, Gonzalez exited the safety office and walked 30
feet to her vehicle to put back items that she did not need to take
underground. Tr. 20-21, 95.

According to Gonzalez, while walking
back toward the safety office from her vehicle she noticed Sarabia standing
underneath the right fork of the forklift. [15]
Tr. 23-25, 74. Gonzalez testified that, although barriers were in the area, she
had a clear line of sight and saw Sarabia using his right hand to guide the
transfer case hanging from a tow strap attached to the middle of the right fork
above. Tr. 23-27, 74, 84, 462-464. According to Gonzalez, the case was initially
at about the middle of Sarabia’s body [16]
and was being raised into the air by Ortega, who was in the cab operating the
forklift. Tr. 24-26, 86. Once stopped, the fork from which the case was
suspended was approximately 12 feet off the ground, while the bottom of the
transfer case was approximately 6 feet off the ground, i.e., at approximately
Sarabia’s eye level. Tr. 25, 26, 83-84. Gonzalez stated that Sarabia was facing
away from the forklift operator, there was no eye contact between the two, and
hand signals were not being given. Tr. 27. She saw no taglines in the area and
she did not see a bucket underneath the transfer case. Tr. 27.

Gonzalez testified that only a “split
second” elapsed between the time she saw the situation and when she yelled to
Sarabia to get his attention and called him over. Tr. 28, 83. When Sarabia was
next to Gonzalez she told him that she was issuing an imminent danger order
because he was standing underneath the forklift guiding the transfer case while
the lift operator was in the cab operating the machine. Tr. 29. According to
Gonzalez, Sarabia told her that he had been in the process of taking off
fittings and draining water from the case when she yelled. Tr. 75-76, 88.

Abe Hess, the Boart pump rig operator, testified
that he walked up to Gonzalez at the same time Sarabia did and Gonzalez told him
to go get their supervisor, Jory Shumway, who was in his truck. Tr. 120, 139,
140, 191, 281, 329-331, 333, 395, 407. According to Sarabia, it was somewhat
noisy due to all of the traffic in the area, but neither the pump rig nor the
forklift were running. Tr. 333. Boart’s witnesses testified that Shumway and
Hess joined Gonzalez and Sarabia as the group moved toward the safety office. [17]
Tr. 121-124, 154, 191-192, 331, 334, 411-412.

Gonzalez again offered a substantially
different, and somewhat confusing, account of these events. She first testified
that she walked alone with Sarabia to the safety office. Tr. 29. She then
agreed that she met Shumway and Sarabia in the middle of the office parking lot,
but then stated that once inside the safety office she told Jason Haynes, a
Newmont safety officer, that he needed to go get Shumway. Tr. 30. She testified
that she did not speak with Abe Hess that day. Tr. 463.

According to Gonzalez, between the time
when Haynes left the office to get Shumway and when Shumway arrived, she had a five
minute conversation with Sarabia during which she discussed the need to use a
tagline and avoid standing under the forks of a forklift, especially while the
lift operator is in the cab. Tr. 30-31. Gonzalez testified that when Shumway
arrived at the office she told him that she was issuing a 107(a) imminent
danger order and discussed the citations she was going to issue in conjunction
with the order. Tr. 31. Gonzalez claims that both Sarabia and Shumway stated
that they were not aware of the requirement to stay clear of suspended loads or
the need to use a tagline. Tr. 32. She estimated that her conversations with
Shumway and Sarabia lasted approximately 10 minutes. Tr. 91.

Gonzalez testified that, after she spoke
with Shumway, she took a photograph of the area around the forklift from approximately
the same vantage point where she first observed the Sarabia. Sec’y Ex. 5 p. SOL
00022; Tr. 94. She took no measurements as part of her inspection. Tr. 94. After
taking the picture, Gonzalez then traveled underground. Gonzalez stated that
she was “not [at the mine] for Boart Longyear, I was there for Leeville[,]” and
testified that she needed to get underground that day to perform health
sampling and continue the EO1 inspection. Tr. 33, 91-92.

According to Gonzalez, at no point
during her time on the surface the morning of January 15 did anyone from Boart
attempt to show her training documents or the JHA board, and she only became
aware of the JHA board in the weeks prior to hearing. Tr. 33, 68-71. On
cross-examination Gonzalez agreed that an appropriately completed job hazard
analysis could be used as a training guide for task training and that once a
miner has performed a task it is no longer a new task. Tr. 77-78.

Sarabia disputed that he had any
conversation with Gonzalez when they were in the office and both he and Shumway
testified that Sarabia was never alone with Gonzalez in the office. Tr.
192-193, 396. Shumway, Sarabia and Hess all testified that Sarabia and Hess had
very little, if any, conversation with Gonzalez that morning.  Tr. 124-125, 334-336,
414-415, 419. Rather, Shumway was the only individual who spoke at any length
with Gonzalez. Tr. 334-336, 419. According to Shumway, he did not protest when Gonzalez
said she was issuing the imminent danger order because he did not know the
facts and he had been told by his bosses that it was not his job to fight with
inspectors to prove a case. Tr. 115, 123, 126, 134, 136, 140-141, 157 192, 196.
Further, Shumway stated that once inside the safety office the only thing
Gonzalez said to him was that she needed to get with the other MSHA inspectors
underground. Tr. 123. Shumway testified that at no time did Gonzalez say
anything about Sarabia not using a tagline, his training, or ask that Boart
demonstrate safe procedures. Tr. 134-135, 192.

Sarabia estimated Gonzalez spent maybe
two to three minutes talking to Shumway. Tr. 336. Shumway testified that the
entire conversation lasted less than 30 seconds. Tr. 193. Hess testified that
he and Sarabia stood inside an office while Gonzalez and Shumway had only a
short discussion before she left. Tr. 419-420.

Following Gonzalez’s departure from the
safety office, Shumway, Hess, Sarabia and others, at the request of Newmont
safety personnel, filled out a Newmont Job Hazard Analysis form (the “Newmont
JHA”) for the task of installing the transfer case. Sec’y Ex. 8; Tr. 56-57, 112,
113, 125-127, 145, 193, 340-341, 421. Although Boart’s employees informed
Newmont that there was already a JHA board in the doghouse, Newmont nevertheless
asked for Boart to complete Newmont’s JHA form. Tr. 112, 422. According to
Shumway, Boart prepared the Newmont JHA form in response to the imminent danger
order and because Newmont wanted it filled out. Tr. 114, 125-126. Shumway
testified that Sarabia was “upset, physically, visibly shaken” when the group
departed the office. Tr. 149.

Later the same day, Edwin Spear, an EHS
advisor for Boart, traveled to the mine to talk to the crew. Tr. 279, 145-146. At
the time he arrived no paperwork had been issued by MSHA to Boart. Tr. 279. Sarabia,
Ortega and Shumway provided written statements regarding the events of that
morning. [18]
Tr. 137-139, 147, 221-222, 234; Sec’y Exs. 15, 16, 17. At some point Spear
entered the doghouse, reviewed the JHA board, and discussed it with Shumway. Tr.

236. Shumway told Spear that the entire crew had discussed the JHA board that
     morning. Tr. 237.

Spear also met with Shumway, Hess and Jason
Haynes to discuss the Newmont JHA that had been prepared. Sec’y Ex. 8; Tr. 239.
It was Spear’s understanding that the Newmont JHA had been prepared in response
to the imminent danger order so that work could be resumed. Tr. 240. He did not
discuss Boart’s JHA board with Haynes at the time. Tr. 240. However, Spear
testified that he did have a discussion with Shumway that the Newmont JHA was
pretty much the same thing as the Boart JHA board, but with a few more
elaborate details. Tr. 240-241.

After Gonzalez completed her health
sampling underground she returned to the surface around 6:00 PM and met with
Spear and Devon Wood, Boart’s pump division regional manager, in the safety
office. Tr. 33-34, 217, 241-242. The three of them had a short discussion about
the imminent danger order and the safety features of the forklift, including
the safety check valve which prevented the lift from falling in the event of
hydraulic failure. Tr. 218, 242, 243, 267-268, 282-284, 299. Gonzalez testified
that during the conversation she requested that Spear provide training records
for Sarabia because she had reason to believe he was not task trained for this
particular task. Tr. 34, 35. According to Gonzalez, she specifically requested
MSHA form 5000-23 showing that Sarabia had been task trained. Tr. 471-472. Spear
testified that Gonzalez did not suggest that she was going to issue a 104(g)(1)
order for a lack of task training. Tr. 242.

On the morning of January 16 Spear emailed
Gonzalez a portion of the forklift manual that discussed a feature of the lift
that locked out the system in the event of a hydraulic or other type of system failure.
Sec’y Ex. 9; Tr. 58-59, 243-244. The forklift was equipped with this lock-out
system because it was designed to also be used as a man-lift. Gonzalez
testified that this feature was not relevant because the forklift operator was
in the cab and the lift was in motion at the time she observed the cited
conditions. Tr. 59.

Spear testified that the morning of the
January 16 was the first time he discussed Sarabia’s training with Gonzalez. Tr.

285. Specifically, he testified that Gonzalez wanted him to provide information
     about how Boart trained its miners on suspended loads and taglines. Tr. 285. According
     to Spear, he used an iPad to show Gonzalez Boart’s annual refresher training
     slides as well as the field guide that was given to every employee and kept in
     the doghouse. [19]
      Boart Ex. L; Sec’y Ex. 10; Tr. 286, 288, 300. After showing her the documents
     on his iPad Spear sent a second email and attached the annual refresher
     training slides. Sec’y Ex. 10; Tr. 61, 245, 301. Spear testified that he sent
     the slides to show her that all Boart personnel were trained on suspended loads
     and the use of taglines. Tr. 245-246. Spear disputed that Gonzalez asked for
     any 5000-23 training records at this time and instead asserted that she only
     asked for information about the programs Boart used to train its employees. Tr.
     246-247.

Spear testified that the slides covered
working around suspended loads and the use of taglines. Tr. 247-248. During
annual refresher training, the photograph on the first slide showing a
suspended load with miners holding attached taglines would have been accompanied
by a discussion of both suspended loads and taglines. Sec’y Ex. 10 p. SOL 000107;
Tr. 247-248. Further, a second slide, which addressed the issue of hazard
identification and specifically listed “Gravity or Overhead hazards,” also
included a photograph of a suspended load with attached taglines and would have
been accompanied by a discussion about both topics. Sec’y Ex. 10 p. SOL 000119;
Tr. 249-250. Finally, a third slide addressing “gravity” related hazards would
have involved a discussion of overhead loads and associated hazards. Sec’y Ex.
10 p. SOL 000146; Tr. 250. Shumway also testified that a discussion accompanied
each slide and that more than just the text of the slide was covered. Sec’y Ex.
10 p. SOL 000146; Tr. 166-167, 205-207, 215. Spear testified that Sarabia’s
5000-23 forms and sign-in sheets for multiple annual refresher trainings prove
that Sarabia was given the training represented in the slides. Boart Ex. R; Tr.
247.

After reviewing the slides sent by
Spear, Gonzalez determined that they provided no information about the use of
taglines and working around suspended loads. Tr. 61. 468. Gonzalez sent an
email response to Spear in which she notified him that she would not accept the
slides as evidence of training and informed him that she would be issuing a
104(g)(1) order. Sec’y Ex. 11; Tr. 61, 63. Spear was surprised by the email
because he thought the training materials would be sufficient. Tr. 272. In the
same email Gonzalez stated that she would lift the withdrawal order once Boart
provided the names and 5000-23 forms for each miner who was working on the day
in question. Sec’y Ex. 11; Tr. 63, 256.

Spear responded to Gonzalez’s email the
following morning, January 17, with the names of the Boart employees and stated
that he would send the 5000-23 forms shortly. Sec’y Ex. 12; Tr. 64, 259. Later
that same day Gonzalez emailed Spear four enforcement actions, including Citation
No. 9379548, alleging that a miner was not clear of a suspended load, Citation
No. 9379549, alleging that a tagline was not attached to a suspended load that
was being guided by a miner and Order No. 9379555, alleging that the subject
miner had not been task trained. Sec’y Ex. 13; Tr. 65, 259.

On January 21, after a telephone
conversation with Gonzalez, Spear emailed Sarabia’s 5000-23 form to her. Sec’y
Ex. 14; Tr. 64-66, 259-260. According to Spear, Gonzalez only requested Sarabia’s
5000-23 form for the training he received to lift the 104(g) order. Tr. 260.

Bruce Grange, Boart’s senior
environmental health and safety coordinator, met with Gonzalez at the closeout
conference on January 22 and again at Boart’s Elko office on January 28. Tr.
434, 436. He testified that during both conversations Gonzalez was unwilling to
listen to his arguments about mitigating circumstances. Tr. 436-438, 449-454.

Grange testified that Sarabia had
received relevant training multiple times and cited new hire training, crane
training, task training, and annual refresher training as examples. Tr. 434, 448.
Moreover, OSHA’s 10 hour training course covered suspended loads and taglines. Tr.
297-298, 449. Everyone at Boart received OSHA 10 hour training. Tr. 449. Sarabia
testified that Boart Ex. V was his OSHA training card indicating that he had
successfully completed the OSHA 10 hour training. Tr. 297, 377.

At hearing, Spear and Sarabia offered
testimony regarding photographs of the subject area that show the snow on the
left fork had been disturbed and/or removed, while snow on the right fork had remained
undisturbed. [20]
Sec’y Ex. 3 p. 4; Boart Ex. C. p. BOART 000406-000407; Tr. 265, 292-293, 360. Both
Spear and Sarabia testified that the disturbed snow on the left fork indicates
that the crew had rigged the nylon straps to that fork and not the right fork
as Gonzalez had alleged. Tr. 265-266, 360.

A.
Credibility Determination and Resolution of Critical Disputes of Fact

Sarabia and Gonzalez, the only two
witnesses present at the time Gonzalez observed the allegedly violative conduct,
offered substantially different accounts. In reaching my decision in these
matters I find it necessary to resolve three critical disputes of fact: (1) whether
the forklift was powered on and the transfer case was being lifted at the time
in question, (2) the positon of the transfer case, and (3) the position of
Sarabia relative to the case and forklift.

Based on my observation of the witnesses
and my careful evaluation of their respective accounts, I credit Sarabia’s
testimony on each of these issues. Specifically, I find that the forklift was
not powered on and the transfer case was not moving. I further find that the transfer
case was suspended from the left fork at roughly the height of Sarabia’s knee. Finally,
I find that Sarabia was not underneath the forks but, rather, was in a position
to the left of the case from the prospective of the lift operator, which
afforded him the ability to maintain eye contact with the operator.

In reaching these conclusions I rely
primarily on Sarabia’s clear and convincing testimony regarding his firsthand
knowledge of the situation. Although Sarabia testified that he was a little bit
nervous at the hearing, he nevertheless provided testimony that was both
internally consistent and consistent with the testimonies of other witnesses
regarding the events that occurred after Gonzalez ordered Sarabia away from the
forklift. Tr. 364. His detailed recollection of events and calm demeanor helped
convince me that his testimony should be credited.

It is important to note that I am not
finding that Inspector Gonzalez testified untruthfully. Rather, based upon my
observations, I am finding that Sarabia was in the best position to observe
what happened and that his recollection was more consistent with other evidence
offered. Because the inspector did not walk over to the work area to more
closely examine the conditions, she may have misinterpreted what she observed.

Gonzalez’s recollection also appears to
be inconsistent with photographic evidence of the scene. At least three separate
photos, including the single photo taken by the inspector, show that snow had
been removed or disturbed on the left fork, while snow on the right fork appeared
undisturbed. Sec’y Ex. 5 p. SOL 00022; Boart Ex. C. p. BOART-000406-000407.  Boart
argues that the “snow removed from the left forklift tine . . . supports Mr.
Sarabia’s testimony that the transfer case was hanging from the left forklift
tine” because the rigging straps would have disturbed the snow. Boart Br. 10. The
Secretary argues that “[t]here should be no relevancy afforded to” the close-up
photograph of the forks offered as Boart Ex. C. p. BOART-000406 and that the photo
could have been manipulated after the imminent danger order was issued. Sec’y
Br. 17 n. 12. However, the court finds that the photograph taken by the
inspector, Sec’y Ex. 5 p. SOL 00022, as well as other photographs taken by Boart
and/or Newmont, all show the same condition, i.e., an area on the left fork where
the snow had been removed or disturbed with undisturbed snow on the right fork.
As a result, I agree with Boart that the photos support Sarabia’s recollection
of events.

Although I do not know precisely why
Gonzalez’s recollection of events is so different from Sarabia’s, I take note that
she wanted to get underground quickly to conduct health sampling. Gonzalez was
clearly in a rush. She was responsible for conducting underground health
sampling on January 15, but instead found herself dealing with what she
determined to be an imminent danger on the surface. I am troubled by the truncated
nature of the inspector’s investigation of the physical evidence. Gonzalez
conceded that she never spoke to the forklift operator, never went inside the
barriers to closely observe the conditions, never took any measurements, never
asked Sarabia to demonstrate or discuss safe procedures for completing the
task, and only took a single photograph. [21]
Tr. 90, 92, 93, 94. Notably, Inspector Gonzalez did not take a photo after she first
met with Sarabia to document the position of the forks and the transfer case
but waited until later after the forks were lowered to the ground and the
transfer case removed. Moreover, the only photo she did take was shot from roughly
the same location where she met Sarabia. She only observed the scene from that vantage
point. Tr. 94-95. It appears Gonzalez’s need to get underground may have caused
her to conduct a rather cursory investigation of the conditions.

I am required to resolve genuine
disputes of fact that are relevant in determining whether there was a violation
and, if so, the gravity of the violation and the negligence of the operator. The
burden of establishing credible facts to support a violation rests with the
Secretary. I have concluded that the Secretary has not met this burden with
respect to many issues, as discussed in more detail below.  

B.
Citation No. 9379548

Citation No. 9379548, issued under section
104(a) of the Mine Act on January 15, 2019, alleges a violation of Section 57.16009
of the Secretary’s safety standards. The Condition or Practice section of the
citation states, in pertinent part, as follows:

A mechanic was
found standing underneath a suspended load while the forklift operator was
located inside the cab raising the transfer case at Pump Rig LX40 in front of
the operations dry. The forks were raised approximately 12 feet off the ground
and the transfer case was approximately 6 feet off the ground while the
mechanic was guiding the load with his hand. In the event the suspended load
were to fall to the ground while the mechanic was standing underneath fatal
injuries would occur.

Section
57.16009 requires that “[p]ersons shall stay clear of suspended loads.” 30
C.F.R. § 57.16009.

Inspector Gonzalez determined that an
injury was highly likely to be sustained and that any injury could reasonably
be expected to be fatal. She further determined that the condition was S&S,
affected one person, and was the result of Respondent’s high negligence. The
Secretary proposed a penalty of $33,840.00 for this alleged violation.

Fact of Violation

Neither the body of the citation nor the
inspector’s handwritten “Citation/Order Documentation” notes clearly identify
what exactly the Secretary considered to be the suspended load at issue in this
citation. Sec’y Ex. 5. Although the language of these documents is vague, the
Secretary, in his brief, identifies the forks on the forklift as the suspended
load. [22]
The Secretary argues that Boart violated Section 57.16009 because Sarabia was “not
clear of the Forklift’s tynes, or outside the limit of its point of
suspension[.]” [23]
Sec’y Br. 11-12. I find the Secretary did not meet his burden of establishing
this alleged violation. [24]

Section 57.16009 requires that
“[p]ersons shall stay clear of suspended loads.” 30 C.F.R. § 57.16009. The
Secretary’s regulations do not define “stay clear of” or “suspended load” in
the context of section 57.16009. I first address what constitutes a “suspended
load.” Although the Commission has not defined the term, it has twice addressed
the identically worded standard applicable to surface metal and nonmetal mines,
i.e., 30 C.F.R. § 56.16009.

In Sims Crane , 40 FMSHRC 301
(Apr. 2018), the Commission affirmed a judge’s decision finding a violation of
section 56.16009 where a miner traveled within the fall zone of a “spreader
bar” suspended from, and attached to, the hoist hook of a crane via two cables.
Similarly, in Dawes Rigging & Crane Rental , 36 FMSHRC 3075 (Dec.
2014) the Commission affirmed a judge’s decision upholding a violation where a
miner traveled under a piece of a crane that was being lifted into place by a
smaller crane. Notably, in both of these cases the “suspended loads” were hanging
from a point of suspension above.

While the Commission has not explicitly
stated that suspended loads are only those loads hanging from a point of
suspension above, it has described section 56.16009 as “the general rule
guiding miners’ interactions with objects suspended from cranes[.]”   Sims
Crane at 304.  Moreover, judges applying the cited standard have done so in
situations involving objects hanging from a point of suspension above.

In Haines & Kibblehouse, Inc. ,
30 FMSHRC 504, 516 (June 2008) (ALJ), Judge Barbour affirmed a violation of
56.16009 where a “pitman assembly” suspended from a crane swung and struck
another individual. Judge Barbour, relying upon the dictionary definition of
“suspended” explained as follows:

Section 56.16009
is straightforward. . . . The noun “load” is modified by the adjective
“suspended,” and when used as an adjective “suspended” is defined as being
“held in suspension.” Id . at 2303. Thus, a “suspended load” is a mass or
weight supported by something that is being held in suspension. To be held in
suspension is to be in the “state of being hung.” Id . “Hung” is the past
tense of “hang,” which is defined as “to fasten so as to allow free motion
within given limits on a point of suspension.” Id . at 1029. Thus, I
conclude a “suspended load” is a mass or weight fastened to allow free motion
within the given limits of its point of suspension or support, and this is the
same meaning I would reach if I interpreted the standard by applying “suspend”
as a verb instead of “suspended” as an adjective.

In
finding that the “pitman assembly” was a suspended load the judge outlined the
purpose of the standard as follows:

Hanging loads
having free motion can swing within a specific arc or radius. The standard's
goal is to prevent persons from being hit by such loads through barring persons
from locating within a hanging load's possible arc or radius. The logic is
simple and irrefutable. When persons are outside the limits of a load’s point
of suspension, they will not be struck and injured or struck and killed when
the load moves freely.

Id . at 517. Judge
Miller utilized the same analysis in CCC Group, Inc. , 34 FMSHRC 1192, 1196-1198
(May 2012) (ALJ), where she found that beams hung from a crane constituted a suspended
load.

Although I am not bound by the decisions
of other administrative law judges, I find that the reasoning in Haines
and CCC is sound. In both cases, the judges found that the standard was
designed to prevent persons from being struck by loads that were hung from
a point of suspension above, but were otherwise free to move or swing within a
specific arc or radius. Accordingly, I find that to establish that an object is
a “suspended load,” the object must be hung from above.

The Secretary's regulations also do not
define what “stay clear of” means in the context of the cited standard. In Dawes
Rigging the Commission explained that “stay[ing] clear . . . requires more
than simply staying out from directly underneath a suspended load[,] . . . and
[w]hether a person is clear of a suspended load must be determined by
considering the particular facts surrounding the violation.” 36 FMSHRC 3075,
3078 (Dec. 2014) ( citing Anaconda Co. , 3 FMSHRC 299, 301(Feb.1981)).  The
Commission noted that miners are not “clear” of a load when they are “located
in positions in which they [are] in danger from the movement or falling” of the
load. Id . at 3078. A “case cannot rest on a vague observation that
suspended loads move in unpredictable ways.” Id .

I find that the Secretary failed to
establish by a preponderance of the evidence that the forks were a “suspended
load.” I agree with my colleagues that in order to be a suspended load,
a load must be hanging from a point of suspension above. There is no dispute
that the forks were elevated . However, the cited standard is not
concerned with elevated loads, but rather loads that are suspended ,
i.e., hanging from a point of suspension above. I find that the forks were not
a suspended load.

In addition, I credited Sarabia’s
testimony that he was not standing under the forks and that the forklift was shut
down. Further, because the forklift was equipped with the safety check valve
described by Spear and detailed in Sec’y Ex. 9, and Ortega’s hands were not on the
controls, there was no possibility of inadvertent movement of the forks. [25]

Finally, although not explicitly
addressed by the parties, I also find that Sarabia’s presence near the transfer
case did not amount to a violation of the cited standard. There can be no
dispute that the transfer case was a suspended load. It was hanging from the left
fork by the rigging. I find that Sarabia was “clear” of the transfer case. Gonzalez
conceded that she never observed Sarabia under the transfer case. Tr. 75. Moreover,
given the narrow profile of the transfer case, little to no “arc or radius”
existed in which a miner could be struck if the case were to rotate. Similarly,
because the lift was powered off and the load was not moving, there was no risk
of the load swinging and striking a miner. Although there is no dispute that
Sarabia had a hand on the case, his hand was located at the top of the case and
would not have been endangered if the case rotated. [26]
Boart Ex. B illustrates Sarabia’s approximate position relative to the forks
and the transfer case at the time the inspector observed him. Consequently, I
find that Sarabia was “clear” of the transfer case because he was not in danger
from the movement or falling of the load. I have reached this conclusion taking
into consideration the work that he needed to perform.

I find that the Secretary failed to meet
his burden of proof with respect to this citation. Inspector Gonzalez spent the
vast majority of her time talking with officials of Boart outside and then
inside the Newmont safety office. She did not walk around the barricades to
enter the area where the forklift was parked to get a better perspective of the
conditions and she did not take a photo of the conditions when the transfer case
was still rigged to the forklift while in a raised position.

Citation
No. 9379548 is VACATED .

C.
Citation No. 9379549

Citation No. 9379549, issued under
section 104(a) of the Mine Act on January 15, 2019, alleges a violation of
Section 57.16007(a) of the Secretary’s safety standards and asserts that a
mechanic was observed guiding a suspended load with his hand and that no
tagline was in place on the load. Specifically, the citation alleges that the
mechanic was guiding a transfer case, which was suspended approximately six
feet above the ground. Section 57.16007(a) requires that “[t]aglines shall be
attached to loads that may require steadying or guidance while suspended.” 30
C.F.R. § 57.16007(a).

Inspector Gonzalez determined that an
injury was highly likely to be sustained and that any injury would reasonably
be expected to be permanently disabling. She further determined that the
condition was S&S, affected one person, and was the result of Respondent’s
high negligence. The Secretary proposed a penalty of $15,206.00 for this
alleged violation.

Fact of Violation

I find that the Secretary has
established a violation of the cited standard because a tagline was not attached
to the transfer case while Sarabia was observed steadying it with his hand. The
Secretary’s regulations do not define “steadying” and the Commission has not
addressed the subject standard. In the absence of a regulatory definition of a
word, the ordinary meaning of that word may be applied. Peabody Coal Co. ,
18 FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997). The
dictionary defines “steadying,” the present participle form of the verb
“steady,” as “to make or keep steady.” Webster's New Collegiate Dictionary
1129 (1979). The adjective form of “steady” is defined, as relevant to this
analysis, as “firm in position: fixed.” Consequently, the cited standard
requires that a tagline shall be attached to a suspended load when the load may
need to be brought to a fixed position or kept in a fixed position.

I find that the transfer case required
steadying and therefore a tagline should have been attached. There is no
dispute that Sarabia was observed with his hand on the transfer case. Sarabia
himself testified that his hand was on the case for the purpose of preventing it
from moving while he worked with his other hand to remove the fittings. By
placing his hand on the suspended load for the purpose of preventing motion,
Sarabia was “steadying” the load, i.e., keeping it in fixed position. Sarabia
testified that, although a tagline was attached during the transportation of
the case from behind the pump rig to the side of the rig, the tagline was detached
before he began the task of removing the fittings. Because a tagline was not
attached to the case at the time Sarabia was steadying the load, as is required
by the clear language of the standard, the Secretary established a violation. [27]

Gravity and S&S

An S&S violation is a violation “of
such nature as could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In
order to establish the S&S nature of a violation, the Secretary must prove
“(l) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard - that is, a measure of danger to safety - contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of
a reasonably serious nature.” Mathies Coal Co. , 6 FMSHRC l, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc. , 52 F.3d 133, 135 (7th Cir.
1995); Austin Power Co., Inc. , 861 F.2d 99, 103 (5th Cir. 1988)
(approving Mathies criteria).

The Commission has explained that the
focus of the Mathies analysis “centers on the interplay between the
second and third steps.” ICG Illinois , 38 FMSHRC 2473, 2475 (Oct. 2016)
(citing Newtown Energy Inc. , 38 FMSHRC 2033 (Aug. 2016)). The second
step requires the judge to adequately define the “particular hazard to which
the violation allegedly contributes[,]” and then determine whether “there
exists a reasonable likelihood of the occurrence of the hazard against which the
mandatory safety standard is directed.” Id . at 2475-2476. This determination
must be made “based on the particular facts surrounding the violation[.]” Id .
The third step then requires the judge to assume the existence of a hazard and
assess whether the hazard “was reasonably likely to result in serious injury.” Newtown
at 2038; ICG Illinois at 2476.

I find that the Secretary failed to
establish that the violation was S&S. I have already found that Boart
violated the standard because a tagline was not attached to the transfer case
at the time Sarabia was steadying it with his hand. Here, the hazard to which
the violation allegedly contributes is a miner being unable to safely steady a
load due to the lack of a tagline. A tagline is really designed be used when pulling
a load into a desired position and it is not clear from the record whether
Sarabia could have used a tagline to steady the transfer case while removing
the fittings and draining the oil. He likely would have needed to hold the
tagline immediately adjacent to the transfer case in order to keep it steady.

The Secretary, in his brief, argues that
Sarabia could have been struck if the transfer case swayed or became detached. [28]
Sec’y Br. 17. However, given my finding that the case was not in motion and the
lift was powered off, there was very little risk of the case swinging. Moreover,
the Secretary did not introduce evidence regarding the likelihood of the rigging
straps breaking or slipping off the fork or transfer case. The MSHA inspector
did not walk over to the transfer case to see whether it securely attached to
the fork. Consequently, the Secretary did not establish that it was reasonably
likely that the hazard contributed to by the violation would result in an injury.

I also find it unlikely that any injury
would be sustained. If the case did swing, it would only be because of some
outside force, e.g., wind or Sarabia pushing or pulling the case with his hand,
and any swinging motion would be minimal. Again, there was no proof that the
transfer case would fall from its rigging or that the forks would fall. I find it
highly unlikely that any injury would be sustained. As a result, the violation
was not S&S and the gravity was low.

Negligence

The Commission has recognized that
“[e]ach mandatory standard … carries with it an accompanying duty of care to
avoid violations of the standard, and an operator’s failure to meet the
appropriate duty can lead to a finding of negligence if a violation of that
standard occurs.” A.H. Smith Stone Co. , 5 FMSHRC 13, 15 (Jan. 1983). In
determining whether an operator has met its duty of care, the Commission
considers “what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation.” Jim Walter Res. Inc. ,
36 FMSHRC 1972, 1975 (Aug. 2014) (footnote omitted).

While the Secretary argues that Boart
was highly negligent, I find that Boart’s negligence was only moderate. The
inspector relied primarily on two factors in making her negligence
determination: (1) her belief that Sarabia and Shumway were unaware of the
proper use of taglines, and (2) Boart’s alleged failure to produce training
records evidencing that Sarabia had been trained on the use of taglines. Sec’y
Br. 18. As explained more thoroughly below in my discussion of the task
training order, I find that the Secretary failed to establish that Sarabia was
not task trained. Boart was only moderately negligent. [29]
I assess a penalty of $275.00.

D.
Order No. 9379555

Order No. 9379555, issued under section
104(g)(1) of the Mine Act on January 15, 2019, alleges a violation of Section 48.27
of the Secretary’s safety regulations and asserts that a mechanic was not
properly task trained. Specifically, the order alleges that the mechanic failed
to demonstrate safe procedures when working with a suspended load. Section 48.7
requires, generally, that miners be properly trained prior to performing new
tasks. [30]
30 C.F.R. § 48.27.

Inspector Gonzalez determined that an
injury was highly likely to be sustained and that any injury could reasonably
be expected to be fatal. She further determined that the condition was S&S,
affected one person, and was the result of Respondent’s high negligence. The
Secretary proposed a penalty of $33,840.00 for this alleged violation.

Fact of Violation

The Secretary argues that Sarabia’s
conduct and statements made to Gonzalez by Sarabia and Shumway led her to
believe that there was a “lack of training about the hazards of working under
suspended loads and the proper use of taglines[.]” Sec’y Br. 19-20. Based on
that belief and the lack of direct evidence of Sarabia’s task training provided
to Gonzalez, the Secretary argues that the order was properly issued. Sec’y Br.
20.

I find that the Secretary failed to
establish that Sarabia was not task trained on how to work with a suspended
load. In reaching this conclusion I rely primarily on two points. First, Gonzalez
premised the issuance of the order on factual assertions that I declined to
credit. Gonzalez testified that she issued the order, at least in part, because
Sarabia was not using a tagline, was guiding the transfer case with his hand
while it was in motion, and was standing under the forks that were 12 feet off
the ground. Tr. 53. However, I credited Sarabia’s testimony that the transfer
case was not in motion and he was not under the forks.

Second, Boart put on considerable
evidence that Sarabia had received training on suspended loads and the use of
taglines. [31]
Sarabia was an experienced mechanic who had previously worked with suspended
loads and taglines. I credit the testimonies of Sarabia, Shumway and Hess that
the crew gathered in the doghouse the mornings of January 14 and 15 to prepare
and review the JHA board by discussing and documenting hazards presented and
how to protect against those hazards while replacing the transfer case. Boart’s
witnesses offered corroborating testimony that suspended loads and taglines
were covered during those gatherings. Shumway and Hess testified that, given
the nature of the work Boart does, suspended loads and taglines are discussed and
encountered almost “every day.” Tr. 132, 167, 408. Although Gonzalez never saw
the JHA board, at hearing she acknowledged that an appropriately completed job
hazard analysis could be used as a training guide for task training. MSHA’s own
PPM recognizes this fact. Boart Ex. W. Notably, the Secretary did not dispute
that the JHA board as displayed in Sec’y Ex. 18 was “appropriately completed.”

I also find that Sarabia received other prior
training on suspended loads and taglines during MSHA mandated annual refresher
training courses. Sarabia attended annual refresher training courses in 2016,
2017 and 2018, as evidenced by the sign-in sheets and signed 5000-23 forms. Boart
Ex. R. While Gonzalez believed that the annual refresher training slides sent
to her by Spear were “insufficient training” for purposes of satisfying the
cited standard, she offered little reasoning why. Sec’y Ex. 10, 11. I credit
the testimonies of Spear and Shumway that each eight hour annual refresher
training course covered suspended loads and taglines during a slide
presentation that was accompanied by a discussion of the slide content.

Sarabia also received relevant training during
his OSHA 10 hour certification. Sarabia successfully completed the OSHA 10 hour
course in 2012, as evidenced by his signed OSHA training card. Boart Ex. V. I
credit the testimonies of Spear and Grange that the OSHA 10 hour training,
which every Boart employee must take, covered suspended loads and taglines. Tr.
297-298, 449. [32]

Given my analysis, I find that the Secretary
failed to establish by a preponderance of the evidence that Sarabia had not
been task trained regarding suspended loads and the use of taglines. Order No. 9379555
is VACATED .

II.  APPROPRIATE
CIVIL PENALTY

Section 110(i)
of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. 30 U.S.C. § 820(i). According to MSHA’s Mine Data
Retrieval System website, Boart worked over 1,000,000 hours in each of 2017,
2018 and 2019, which correlates with a large contractor. 30 C.F.R. § 100.3
Table V. The parties have stipulated that the penalties, if affirmed, will not
affect Boart’s ability to remain in business. Boart has a history of 19 paid citations
since October 17, 2017 issued at all mines where it was working, only one of
which was designated as S&S. Sec’y Ex. 20. It has no history of previous
citations at the Leeville Mine. The gravity and negligence of Citation No.
9379549 are discussed above. Citation No. 9379549 was timely abated. Sec’y Br.
p. 3. Based on the penalty criteria I assess a penalty of $275 for Citation No.
9379549. This penalty is similar to the penalty that would be assessed using
the Secretary’s penalty point system at 30 C.F.R. § 100.3.  

III.  ORDER

For reasons set
forth above, Citation No. 9379548 and Order No. 9379555 are VACATED . Citation
No. 9379549 is MODIFIED to a non-S&S violation with moderate
negligence. Boart Longyear Company is ORDERED TO PAY the Secretary of
Labor the sum of $275 within 40 days of the date of this decision.

/s/
Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Luis
Garcia, Esq., Office of the Solicitor, U.S. Department of Labor, 350 South
Figueroa Street

Suite
370, Los Angeles, CA 90071-1202 (Certified Mail)

Dana
M. Svendsen, Esq., Sherman & Howard L.L.C., 633 17th Street, Suite 3000,
Denver, CO 80202-3622 (Certified Mail)

[1]
The three enforcement actions in this proceeding were issued along with imminent
danger Order No. 9379547, which Boart neglected to contest. The imminent danger
order is not before me. See Sims Crane Inc. , 39 FMSHRC 1367 (July 2017);
see also ACI Tygart Valley , 38 FMSHRC 939 (May 2016). During a
conference call with the parties prior to hearing I made clear that I would not
allow the Secretary to rely upon the language in the Condition or Practice
section of the 107(a) order to establish the underlying facts in this case. See
Knife River Const. , 38 FMSHRC 1289, 1294 (June 2016) (Contrasting 107(a)
imminent danger orders, which are reviewed from the perspective of an
objectively reasonable inspector, with violations of mandatory safety
standards, which the Secretary must prove by a preponderance of the evidence).
During this call, I advised counsel for the Secretary that he would be required
to establish the alleged violations by a preponderance of the evidence
presented at the hearing.

[2]
Sarabia has worked for Boart for approximately eight years, including a period
where he worked in oilfields and routinely dealt with suspended loads and
taglines. Tr. 311, 368-370. Prior to becoming a mechanic he worked as a floor
helper, mast and derrick hand, and safety man. Tr. 364, 369. As a safety man he
was responsible for providing hazard training to others. Tr. 369. While he
normally worked at Boart’s Salt Lake City shop, he routinely traveled to mine
sites to work on equipment. Tr. 366. He has taken apart and assembled many
pieces and parts of equipment, including transfer cases on pump rigs. Tr. 365.
He operated a forklift daily when working on drilling and pump rigs. Tr.
365-367.

[3]
Oil was used to lubricate the interior of the case and prevent moisture from
causing rust. Tr. 179, 381.

[4]
The “doghouse” was a walk-in trailer located next to the subject pump rig. Tr.
161-163.

[5]
Sarabia and Edwin Spear, an Environment Health and Safety (“EHS”) advisor with
Boart, both testified that they would expect to see a JHA board at every Boart
worksite. Tr. 216, 295, 375. Jory Shumway, the field supervisor in charge of
this particular job, testified that, although he did not have a specific
recollection of the board on January 14, he would expect that taglines and
suspended loads were covered and documented since they are usually on the board
every day. Tr. 113-114, 131-132, 313. Abe Hess, a Boart rig operator, testified
that he filled out parts of the board. Tr. 424. During Hess’s testimony he
initially appeared to be under the impression that Boart began site setup on
January 13. Tr. 423-425. However, his later testimony made clear that his
references to January 13 were in error and he should have been referencing
January 14 instead. Tr. 426.

[6]
Sarabia testified that he used a used a tagline during the removal of the old
case. Tr. 338.

[7]
For purposes of the decision, references to the right and left fork, or right
and left side of the forklift, are made from the perspective of an individual
sitting in the forklift operator’s cab. The forklift at issue, a JLG
Telehandler, was an extended boom forklift. The operator’s cab was located on
the left, while the boom was to the right of the operator cab. Sec’y Ex. 9; Tr.
183, 184. Given the position of the cab, the operator had a better view of the
left fork. Tr. 184-185.

[8]
Sarabia explained that he always suspends machinery from the left fork because
using the right fork required the presence of another person to act as a
spotter. Tr. 404.

[9]
Boart employees use hand signals to communicate with equipment operators. Tr.

181. Employees are instructed on the hand signals “as soon as they come into
     the field.” Tr. 181.

[10]
Abe Hess, a Boart pump rig operator, testified that barricades, or barriers,
surrounded the whole worksite as depicted by yellow blocks in Boart Ex. A p. 4;
Tr. 407, 409-410. Spear testified that the concrete barriers, which were
“Jersey” freeway barriers, were approximately three feet high and were
positioned all the way around the pump rig and doghouse, with a small opening
for the forklift to get in and out. Tr. 231-233. Spear also used a green pen to
identify on Sec’y Ex. 3A the approximate location of the barriers but the
markings are difficult to see because the Secretary laminated the exhibit. Tr.
232-233, 266. He noted that the barriers on the aerial photos were not in those
positions on January 15 but were located as shown in Boart Ex. A p. 4; Tr. 267.
He further testified that anyone beyond the barriers looking at the pump rig
and forklift may have had their view obstructed. Tr. 233. Shumway testified
that the markings on Boart Ex. A p. 4 accurately depicted the location of the
pump rig, doghouse, forklift, and barricades on January 15. Tr. 171, 175.

[11]
Boart’s “Show Hands Policy,” required equipment operators to show others that
their hands were not on the equipment controls, thereby indicating it was safe
for those around the equipment. Tr. 182, 384.

[12]
Shumway and Sarabia testified that the best location for the transfer case
during this task was just above the bucket on the ground. Tr. 188-189, 389. If
the transfer case was above a mechanic’s head, the mechanic would not be able
to reach the fittings or have leverage to manipulate tools needed during the
task.  Tr. 186, 188. Further, oil would pour onto the ground and the mechanic
if the plug was opened while the case was that high. Tr. 186. Sarabia, who is
approximately 5 feet, 4 inches tall, testified that if the case had been above
his head he would not have been able to use the tools necessary to complete the
task. Tr. 388.

[13]
Sarabia testified that Gonzalez was approximately 15 to 20 feet away from him
when he first heard her yell and that he ultimately walked 10 to 15 feet to
meet her. Tr. 329, 387. 

[14]
Gonzalez has been an inspector with MSHA for four years. Tr. 14. Prior to
working for MSHA she spent 10 years as a heavy equipment operator at an open
pit mine. Tr. 73.

[15]
Gonzalez estimated that when she first saw Sarabia under the fork she was
approximately 10 feet from her vehicle on her way back toward the safety office
and Sarabia was approximately 10 feet to her right. Sec’y Ex. 3A; Tr. 30.

[16]
Gonzalez testified that she is five feet, six inches tall and that Sarabia is
approximately six feet tall. Tr. 84. Sarabia testified that he is approximately
five feet, three to four inches. Tr. 388.

[17]
Hess testified that he heard Gonzalez yell at Sarabia and, when he approached
Gonzalez she asked for his name and if he was a supervisor before telling him
to go get his supervisor. Tr. 415, 418. According to Hess it took him about 15
seconds to get Shumway and for the two of them to return to Gonzalez and
Sarabia, at which point the group then headed toward the safety office. Tr.
419.

[18]
Ortega did not appear at hearing. His witness statement was offered into
evidence. Sec’y Ex. 16. Because Ortega did not appear at hearing and could not
be cross-examined regarding the statement, I give it no weight.

[19]
There is some dispute regarding the timing of certain requests, what was
requested, and when those documents were provided. However, given my findings
below with regard to Order No. 9379555, I need not resolve those conflicts.

[20]
According to Grange, the pictures contained in Boart Ex. C were sent to him
shortly before hearing by a Newmont safety employee who had found them in a
folder Newmont kept regarding the inspection. Tr. 441. The Newmont employee
told Grange that the pictures were taken the day Boart was ordered to shut
down. Tr. 441. According to Grange, Newmont takes pictures of every condition
cited at the mine even when the citation is issued to a contractor. Tr. 444.

[21]
All of the photographs of the scene introduced into evidence were taken after
the forks had been lowered and transfer case removed from the forklift.

[22]
The Secretary states that “the primary issue in this case is whether Mr.
Sarabia was ‘clear’ of the suspended load – Forklift’s tynes.” Sec’y Br. 11. He
further states that the inspector observed Sarabia “underneath a suspended
load, the Forklift’s right tyne[.]” Id . at 11-12.

[23]
The terms “tyne,” “tine” and “fork” were used interchangeably throughout the
hearing and in the parties’ briefs.

[24]
Boart, in its brief, disputed Gonzalez’s description of the events and argued
that Sarabia’s testimony should be credited. I have already addressed the
critical disputes of fact above. 

[25]
In Sims
Crane , 40 FMSHRC 301 (Apr. 2018), the Commission addressed the relationship
between section 56.16009 and 56.14211. The Commission stated that “the general
mandate” of section 56.16009 and the “more precise language of section
56.14211” must be “read harmoniously to arrive at a reasonable result[.]” 40
FMSHC at 304. Section 56.14211, in general, prohibits miners from working under
raised portions of mobile equipment, or components of the equipment, until the
equipment has been blocked or mechanically secured. 30 C.F.R. § 56.14211. MHSA’s
Program Policy Manual (“PPM”) states that the standard is designed “to prevent
a ‘free and uncontrolled descent’ in the event of a sudden failure of the
system holding up the raised component.”  IV MSHA, U.S. Dep't of Labor, Program
Policy Manual, Parts 56/57, at 55 (2015). The PPM expressly states that “[h]ydraulic
telescoping boom cranes with flow restrictions or check valves in the hydraulic
system will prevent a free and uncontrolled descent of the boom and attached
work platform.” While the parties did not present this argument, it appears
that the Secretary’s own interpretive guidance acknowledges that safety check
valves may satisfy blocking requirements.

[26]
In Freeport-McMoRan
Sierrita , 39 FMSHRC 1105, 1128 (May 2017) (ALJ), I found that a miner
guiding a moving suspended load with his hands was not “clear” of the load. In
that case the miner was operating in a small, confined area on the bed of a flat-bed
truck, which was approximately four feet off the ground. Given the small area
in which the miner was working and the fact that he would have to jump off the
bed of the truck in order to “exit” the area, I found that it was critical he
remain away from the load. Unlike the miner in Freeport , Sarabia was
standing on the ground with no apparent obstacles nearby and the load he was
touching was not moving.

[27]
Boart
argues that the citation should be vacated because the evidence does not
establish that the transfer case required steadying or guidance. Boart Br. 11.
However, Boart’s brief concedes that “Sarabia was standing next to the transfer
case steadying it[.]” Id . at 12.

[28]
The Secretary made other arguments based on Gonzalez’s testimony that the case
was moving at the time she observed the condition. Sec’y Br. 16-18. However,
given my credibility determinations above, I need not address those arguments.

[29]
The conduct of a rank-and-file miner is not imputable to the operator in
determining negligence for penalty purposes. The operator's supervision,
training, and disciplining are relevant. Fort Scott Fertilizer-Cullor, Inc. ,
17 FMSHRC 1112, 1116 (July 1995).

[30]
The citation, as modified, was issued for an alleged violation section 48.27.
The Secretary, in his brief, states that subsection (c) of the standard is
applicable in this instance. Sec’y Br. 19. Section 48.27(c) states that “[m]iners
assigned a new task . . . shall be instructed in the safety and health aspects
and safe work procedures of the task, including information about the physical
and health hazards of chemicals in the miner's work area, the protective
measures a miner can take against these hazards, and the contents of the mine's
HazCom program, prior to performing such task.” 30 C.F.R. § 48.27(c).

[31]
The
Secretary, in his brief, states that Boart never provided Gonzalez with direct
evidence of Sarabia having been trained. Sec’y Br. 6-8, 19-23. This court must
consider all the evidence presented at a hearing and not just the information
that was given to the inspector at the time the order was issued. See Knife
River Const ., 38 FMSHRC 1289, 1294 (June 2016). I have considered all of
evidence of training and not just what the inspector was aware of at the time
she issued the order. 

[32]
While not critical to my analysis, I do take note of training Sarabia received
from Barrick, another mine operator, in June of 2018 that specifically covered
working under suspended loads. Boart Ex. T; Tr. 377-378. Further, I note that
Sarabia had access to Boart’s “EHS Management System Field Reference” document,
which references staying away from suspended loads. Boart Ex. L p. BOART
000196.