I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

On February 15, 2012 MSHA Inspector Steven J. Hagedorn issued Order No. 8603355, pursuant to Section 104(g)(1) of the Mine Act, to Foothill for an alleged violation of Section 46.7(a) of the Secretary’s regulations. The regulation cited states as follows:

You must provide any miner who is reassigned to a new task in which he or she has no previous work experience with training in the health and safety aspects of the task to be assigned, including the safe work procedures of such task, 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. This training must be provided before the miner performs the new task.

30 C.F.R. § 46.7(a). The citation described the alleged violative condition as follows:

The miners; 7 each initials: R.P., K.P., J.B., D.C., J.H., J.S., J.T. The man lift operators had received task training on 12/15/2010. By and (sic) outside contractor. The miners were asked as a group to conduct a pre inspection examination of a 600S man lift. The observed demonstration of the pre op indicated that the training was not effective. When asked about cycling the functions of the ground controls the miners were not aware of what was to be done. The boom was fully extended and the cable tray was defective. When the boom was retracted the cable bounded up. This condition supports the need to fully cycle all of the functions of each system as per the operator’s manual. The Federal Mine Safety and Health Act of 1977 declares an untrained miner a hazard to himself and others.

Hagedorn determined that injury or illness was unlikely to be sustained, but if one occurred it could reasonably be expected to result in lost workdays or restricted duty. Further, he determined that the violation was not significant and substantial, that one employee was affected, and that the negligence was low. The Secretary has proposed a civil penalty in the amount of $100.00 for this alleged violation.

a. The Violation

While conducting an inspection at the Hogan Quarry, Inspector Hagedorn asked the miners, as a group, to conduct a pre-operation inspection of the JLG man-lift. Hagedorn has been an inspector with MSHA since 1998 and had twelve or more years mining experience prior to joining MSHA, including experience with man-lifts and other equipment. The seven miners who were present for the inspection conducted a pre-op as Hagedorn observed. When the miners were finished, Hagedorn asked to see the manual for the man-lift and worked through the pre-op process with the miners. Hagedorn, in going over the pre-op requirements, completely extended the boom, something the miners failed to do, and, when bringing it back, observed a defect. Hagedorn testified that the miners told him they did not understand that “that is what they are supposed to do.” (Tr. 8). Hagedorn explained that the miners should have used the manual during the pre-op, but they did not and, in his view, the failure to use the manual resulted in them missing a defect on the man-lift. As a result, Hagedorn concluded that the miners had not received adequate task training.

Hagedorn explained that one of the requirements of the pre-op inspection is that the operator of the equipment conduct a functionality test of the ground controls. The manual for the man-lift describes that function test. Sec’y Ex. 3 pp. 2-5. Although the test was partially conducted by the group of miners, it was not done in “full motion.” (Tr. 9). In conducting a test of the ground controls, the miners are required to fully cycle through each function, such as rotating the man basket and extending the boom to its full position. In this case, when the boom was finally extended to its fullest, the cabling “balled up” on the return, thereby demonstrating a malfunction of the boom. Hagedorn explained that only by conducting a full functionality test can the miner be certain that the equipment is safe to operate. Based upon the miners’ inability to conduct the pre-op, Hagedorn issued an order withdrawing the miners until they were adequately trained to conduct the pre-op inspection. Hagedorn did not issue a citation for the defective equipment, as he understood that the equipment had not been used for three months and was not often used. As a result of the citation, the man-lift was taken out of service. Hagedorn testified that, had the mine operator, instructed the miners that they must use the manual to perform the pre-op check and sign off on it, the training would have been sufficient to abate the violation. Hagedorn also opined that training on the Genie man-lift would not be sufficient for a JGL man-lift.

Charlie Haener, the safety director at the mine, testified that the subject man-lift was the only man-lift at the mine, and while he often conducts training at the mine, he did not feel qualified to conduct the training for this man-lift. Therefore, he hired an outside company to conduct the training. The company hired by Haener conducted the training on December 15, 2010 for the seven miners that were later cited by Hagedorn. During the training, the miners used a “participant’s guide,” Foothill Ex. A, for a Genie man-lift. Each miner filled out the guide and took the test shown at the end of the guide. In addition to going through the guide, the miners were trained on the equipment itself. The training on this piece of equipment took about two hours. In Haener’s view, the use of the Genie handbook for a piece of JLG equipment makes no difference. He argued that the equipment is similar enough that the book, along with working on the equipment itself, assures the training is adequate. The pre-operational inspection is covered by the participant guide, Id. at p. 16, and refers the operator to the manual for the equipment as a basis for performing the inspection. The training guide also addressed the function tests, Id. at p. 17, and instructs the operator to “follow the step-by-step instructions to test all machine functions.” Both the Secretary and Foothill introduced the manual for the JLG lift as an exhibit. Sec’y Ex. 3; Foothill Ex. B.

Robert Praster, the plant foreman, attended the December 2010 task training course with the other miners and was present when the inspector asked the miners to conduct the pre-operational test. Praster indicated that the seven miners used the steps in the manual when conducting the pre-operational test and that they did the functionality test as they were instructed. According to Praster, they were not taught, and the manual does not require, that the boom be extended to its full position during the test. Praster confirmed that the seven persons who were involved in the group pre-op all operated the man-lift and said that the equipment was rarely used. It had been three months since someone last operated the subject man-lift. The training had taken place about a year prior to the inspection, and it did include standing at the machine and operating it. (Tr. 26). Praster testified that, at the time of the violation, the functions were all checked, just not to their fullest extent.

The manual for the JLG lift lists the elements that must be covered in the pre-operational check, including the use of the ground controls, as well as others. Foothill Ex. B p. 2-1. The manual also refers to a pre-start inspection and the “function check” requiring a functional check of all systems, Id. at p. 2-4, and describes that check for the ground control panel. Id. at p. 2-5. The check includes an examination of the guards and instructs the operator to “operate all functions and check all limiting and cut-out switches,” as well as other checks. The manual also describes the limit switch and advises when checking the boom length switch to “telescope boom out to full extension.” Presumably this is the function that was not done and caused the inspector to believe that the training was inadequate. That action, along with the fact that the miners did not use the manual and follow the steps as listed in such, points to inadequate training according to the Secretary.

Although the inspector did not address it in his citation, the Secretary argues that the use of the Genie training guide, instead of one for a JLG man-lift, demonstrates that the training was inadequate. I do not agree. The training guide refers the operator of the man-lift to the manual for the particular equipment being used at the mine and explicitly instructs the operator of that equipment to test all machine functions according to its own manual. The training does not instruct the miners to use the manual for the Genie man-lift, presumably because the manuals may vary as the equipment varies. Additionally, Hagedorn agreed that if the mine instructed the miners to use the manual to conduct for a full pre-op, he would be satisfied that the miners were trained and terminate the violation.

The mandatory standard requires the operator to provide training to any miner who is assigned a new task. In this case the new task was operating the JLG man-lift. The standard, as relevant here, requires the training to include the “health and safety aspects of the task to be assigned, including the safe work procedures of such task . . . .” Further, the standard implies that the training must be competently completed and some demonstration of the knowledge of the task demonstrated by the trainee. There is no dispute here that the miners did receive task training for the JLG man-lift. The question that remains is whether that training was adequate to meet the MSHA standards. The Secretary argues that it was not adequate solely on the basis that the miners, who conducted a pre-op inspection together, failed to use the manual and conduct the functionality test by fully extending the boom. The mine argues that it did everything it is required to do, that the check was done adequately and, in any event, the equipment had not been used for three months.

While I agree that the failure to competently conduct a pre-op examination can be some evidence of a failure of training, it is not dispositive of the issue. There is no evidence that the man-lift was going to be operated on the day of the citation, nor is there evidence of who would have used the equipment or when the pre-op would have been done. Further, I must assume that extending the boom to its fullest extent is a required part of the task training as there is little credible evidence of that in the transcript. Furthermore, there is nothing to show that certain aspects of the training as demonstrated by the training booklet or the manual were overlooked. I agree with Hagedorn that adequate training is very important and that the lack of such training creates a high degree of danger at the mine when a miner is not trained as he/she should be. The mine operator is responsible to ascertain that the training received by the miners is adequate and that it assures that they can safely operate the equipment on which they are trained. However, in this case, there is simply not enough to prove that the training was inadequate.

The Secretary did not address the adequacy of the training in terms of the amount of time required and the tasks that must be included. The operator testified that the training took two hours and included the workbook and time operating the machine. It is quite possible that, because the equipment was not used often and had not been used for three months, a refresher training was necessary when it was operated. Moreover, I cannot determine whether a miner who was assigned to use the equipment would, when left to his own devices, would refer to the manual and conduct the pre-op inspection in a more thorough manner than the group as a whole. I take notice that the program policy manual of MSHA for this standard includes a statement that “Under Part 46 the written training plan must address each task for which training will be conducted. The training plan must include a general description of the teaching methods, course materials, evaluation methods and competent person(s) who will conduct the training. Additionally, the plan must list the approximate time or range of time to be spent on each task training.” The training plan is not a part of the record in this case and, therefore, I cannot determine if the operator met its obligation under that plan.

While I agree with Hagedorn that the miners, as a group, probably were not proficient at the pre-operation inspection, that does not, in and of itself, prove a violation of the task training regulation. There is no evidence that any of these persons intended to operate the equipment, nor is there evidence as to whether more hands-on training is provided when the machine is started up every few months. Further, there is not sufficient evidence for me to determine whether the miners initially received adequate training, but simply did not recall the training when asked by Hagedorn more than a year later. I agree that the failure to understand how to operate the equipment is a serious matter, but the Secretary has not met his burden in proving a violation of the cited standard. Accordingly, Order No. 8603355 is VACATED.

II. ORDER

Order No. 8603355 is hereby VACATED and the above captioned docket is DISMISSED.

/s/ Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:

Nadia Hafeez, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5710

Charlie Haener, Safety Director, Foothill Materials, Inc., P.O. Box 147, Valley Springs, CA 95252