FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W. SUITE 9500

WASHINGTON, DC 20001

TELEPHONE: 202-434-9980 / FAX: 202-434-9949

August 1, 2012

AMENDED DECISION

Appearances:  Natalie E. Lien, Esq., U.S. Department of Labor, Denver, CO, on behalf of the Secretary

Tod T. Morrow, Esq., Morrow & Meyer, LLC, North Canton, OH, on behalf of Stansley Miner Resources, Inc.

Before:            Judge David F. Barbour

            This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”) acting through the Mine Safety and Health Administration (“MSHA”) against Dawes Rigging & Crane Rental (“Dawes” or “the company”) pursuant to sections 105 and 110, 30 U.S.C. §§ 815, 820, of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”). 30 U.S.C. § 801, et seq. The Secretary seeks the assessment of a civil penalty of $3,000 against Dawes for one violation of the Secretary’s mandatory safety standards for surface metal/nonmetal mines. Dawes was cited for the violation while performing contract work on the south side of the Tilden Mine pellet plant, which is owned and operated by Cliffs Natural Resources, and is located in Marquette County, Michigan. The violation is alleged in Citation No. 6502467, which was issued pursuant to section 104(d)(1) of the Mine Act. 30 U.S.C. § 814(d)(1). The Secretary asserts that the operator violated 30 C.F.R. § 56.16009, that the violation was a significant and substantial contribution to a mine safety hazard (“S&S” violation), and that the violation was caused by Dawes’s unwarrantable failure to comply with the cited standard. Section 56.16009 requires that “all persons . . . stay clear of suspended loads.” In answering the petition, the company argued that it did not violate section 56.16009 and that the Secretary wrongly characterized the violation as S&S and unwarrantable. The case was heard in Madison, Wisconsin.

STIPULATIONS

The parties have stipulated as follows:

1.         In May 2010, Dawes . . . was assembling a crane at the Tilden [M]ine . . . in Marquette County, Michigan.

2.         [The] Tilden [M]ine is a surface metal/nonmetal mine.

3.         On May 27, 2010, MSHA issued to Dawes . . . Citation Number 6502467, alleging a violation of 30 C.F.R. § 56.16009.

4.         At the time the citation was issued, [Dawes] was engaged in operations in the United States, and its operations affected interstate commerce.

5.         Dawes . . . is subject to the jurisdiction of the Mine Act.

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

7.         A true copy of the citation at issue in this proceeding, Government Exhibit Number 1, was served on Dawes . . ., as required by the Act.

8.         Dominic Vilona was an authorized representative of the . . . Secretary of Labor assigned to the Marquette, Michigan, field office of MSHA’s Metal/Nonmetal Division at the time the citation was issued, and was acting in his official capacity when the citation was issued.

9.         The proposed penalty will not affect [Dawes]’s ability to remain in business.

10.       The certified copies of the MSHA Assessed Violations History reflect the history of the mine for 15 months prior to the date of the issuance of the citation at issue, and may be admitted into evidence without objection by Respondent.

11.       The parties stipulate to the authenticity of their exhibits, but not to the relevance or truth of the matters asserted therein.

Jt. Ex. 1; Tr. 13-14.

THE TESTIMONY

SECRETARY’S WITNESS

Dominic Vilona

            Dominic Vilona has worked for MSHA for 17 and a half years, first as an inspector in training, then as an inspector and as a supervisory inspector. Tr. 19-20. As an inspector, Vilona inspected about 45 metal/nonmetal mines a year, most of them surface mines. Tr. 21. As part of inspecting these mines, Vilona, under MSHA’s direction, also inspected contractors operating at mine sites. Tr. 21. Vilona has no experience or training in actually operating or assembling a crane. Tr. 68-69, 70. However, Vilona has witnessed a few cranes being assembled. Tr. 85.

            The citation in question was issued May 27, 2010. Inspector Vilona was dispatched to conduct an inspection at the Empire Mine, a sister mine to the Tilden Mine. Tr. 24. The two mines, owned by the same operator, abut each other. Tr. 24. Vilona knew that Cliffs Natural Resources was having a crane constructed at the Tilden mine and that Dawes had been hired to do the work. Tr. 25. Vilona was interested, and he had mine personnel take him in a company van to observe the crane assemblage. The van stopped at the top of a hill where the group could look down on the assembly site. Tr. 26-29. Vilona estimated that when he was in the van at the top of the hill, he was about 50 yards away from the crane assembly operation and that the hill was about 75 feet high. Tr. 61.

            At the crane assembly site, a Manitowoc 14,000 crane was suspending the boom of the much larger Manitowoc 21,000 crane that the Dawes crew was assembling. Tr. 26. The crew consisted of several men, one of whom was William “Bill” Rahmlow. Vilona later learned that Rahmlow was the crew foreman of the crane assembly. Vilona believed Rahmlow was standing under the suspended boom of the larger crane, signaling to the other men, and apparently directing the operation. Tr. 27, 33, 35. Vilona observed another man, whom he later learned was Jeffrey “Jeff” Eick, holding a tag line on the opposite side of Rahmlow. Tr. 27, 35. Vilona did not see any other tag lines. Tr. 73-74. He saw another man, whom he later learned was John Schlieve, a crane assembly foreman like Rahmlow, on the large crane body waiting to place a pin that would secure the crane boom to the crane body. Tr. 27.

            Vilona sat in the van, observing the scene below him, for 15 to 20 seconds. Tr. 54. He testified that he could see clearly from his vantage point on the hill. Tr. 83. However, Vilona did not have binoculars to view the progress of the crane assembly from the top of the hill, and he did not get out of the vehicle. Tr. 60-61.

            Vilona asked the van driver to proceed down the hill and to approach the crane. Tr. 31. By the time Vilona reached the crane assembly site a minute-and-a-half later, Rahmlow was slightly to the side of the boom, and Eick, who had been on the opposite side of the boom from Rahmlow, was now on the same side as Rahmlow, still holding the tag line. Eick had clearly walked under the suspended boom to change sides. Tr. 31-33.

            Vilona introduced himself to Rahmlow and asked why he, Rahmlow, had been under the boom. Tr. 33. At the court hearing, Vilona recalled that Rahmlow replied, “[s]ometimes you have to get under the boom to . . . get the job done, or something to that effect, to get it lined up.” Tr. 33-34. Vilona also read from his contemporaneous field notes that Rahmlow claimed that “[h]e need[ed] to be under [the boom] to see everything.” Tr. 35. When Vilona asked Rahmlow why Eick had crossed under the suspended load, Rahmlow responded that Eick had crossed under “because he needed to hold [the load] steady.” Tr. 36. Vilona testified that Rahmlow never directly admitted to being under the boom, nor did he deny it. Tr. 66, 83.

            In the citation, Vilona determined that the violation affected two people, that serious injuries were reasonably likely to result from the violation, that the violation was due to a high degree of negligence, that the violation was S&S, and that the violation was caused by Dawes’s unwarrantable failure to comply with section 56.16009. Gov’t Ex. 1. In designating the citation as affecting two people, Vilona had Rahmlow and Eick in mind. Tr. 45. Vilona determined that an injury was reasonably likely to result because of the frequency with which this violation seemed to occur with this crew given Rahmlow’s statement that “sometimes you have to get underneath the load.” Tr. 45. Vilona testified that “[i]f that’s a practice; then left uncorrected, through the continued mining process, making picks over and over again in conditions where there is wind, where there [are]not enough tag lines, then it’s reasonably likely that something is going to happen to injure that person.” Tr. 45-46. Vilona testified that the injury that would result from the hazardous condition would be a crushing injury, and that the crushing injury would likely result in death. Tr. 46. Vilona determined that the company’s negligence was high because “there was a foreman involved [who] had reason to know or had knowledge of the violation and . . . [placed] . . . another employee at risk, along with himself.” Tr. 55.

            Vilona listed all the possible hazards that could occur because of the violative condition: rigging failure, operator error, a load getting hooked on something and then suddenly releasing, a swinging boom, inadvertent lowering of the machine, and wind. Any of these listed hazards could result in the boom pinning, hitting, or crushing a person. Tr. 40. According to Vilona, relevant to this case in particular, is that there was wind that day, and wind can cause a boom to move while it is suspended. Tr. 40. In Vilona’s opinion, the tag line used was not sufficient given the conditions and the load. Tr. 41. He believed that there should have been at least two tag lines on the boom, one on each side, and possibly two more on the “backside of the lattice, to hold it in position in that type of wind.” Tr. 41. According to Vilona, if the crew did not have enough tag lines for the conditions, the crane operator should not have made the pick. It was too dangerous. Tr. 41. Vilona explained that the problem with having only one tag line hooked on only one side is that “if the wind blows one way, you can hold it. If it blows the other way, you can’t. There is nothing you can do.” Tr. 41.

            In Vilona’s opinion, Dawes’s violation of section 56.16009 rose to the level of unwarrantable failure for a number of reasons. Vilona reasoned that Rahmlow was a foreman and that he went under the load in front of the men he was directing. Tr. 53. Vilona also believed that Rahmlow instructed Eick to go underneath the suspended load. Tr. 53. Vilona testified that the violation created an extreme hazard because “of the unpredictability of the suspended loads and the multiple things that can happen; there is anything from sling failures[,] to wind[,] to operator failure . . . the seriousness of the injury that were to occur [sic] would be significant, fatal or permanently disabling, or something very serious.” Tr. 53. As previously noted, based on Vilona’s conversation with Rahmlow, it seemed to Vilona that this was not a one-time occurrence. Tr. 54. Vilona also understood that there are no exceptions to section 56.16009. Tr. 51-52. He stated that there are no “exigent or emergent situations where it would be okay to be under a suspended load.” Tr. 52, 86. Vilona noted that it is a widely recognized rule in the industry that traveling under a suspended load is prohibited. Tr. 52. In Vilona’s opinion, the company did not provide him with any information that would mitigate the violation. Tr. 55.

COMPANY’S WITNESSES

John Schlieve

            John Schlieve has been employed by Dawes for 15 years. Tr. 88. As of May 27, 2010, the day the citation was issued, Schlieve had 22 years of crane assembly experience. Tr. 88. Like Rahmlow, Schlieve is an Assembly/Disassembly (“AD”) Director for Dawes. Tr. 88. He has worked in that position for 14 years. Tr. 88. On the day of the citation, Schlieve was on the crew of the Tilden mine crane assembly operation, but Rahmlow, not Schlieve, was acting as AD Director. Tr. 88.

            On May 27, Rahmlow held a safety meeting first thing in the morning at the Tilden job site. Tr. 97. At this meeting, the crew members discussed “the task of the day . . . , any hazards that . . . may have come about as far as pinch points [and] overhead suspended loads.” Tr. 97. Before beginning the project, Cliffs Natural Resources also conducted a site-specific orientation training session during which the group covered MSHA standards and regulations. Tr. 97.

            Schlieve testified that on May 27, there were five Dawes employees working at the crane assembly site: Bill Rahmlow (the AD Director/foreman), John Schlieve (working on the crane body), Jeff Eick (part of the assembly crew), Randy Gilbertson (operating the Manitowoc 14,000 assist crane), and Cleve Mozley (operating the Manitowoc 21,000 crane). Tr. 95-96. Dawes had also hired two oilers through the local union to help with the assembly project. Tr. 96. At the time Vilona arrived, the crew was trying to connect the main boom to the body of the crane (also known as the “car body”), a process that is called the “boom-to-foot connection.” Tr. 98. Schlieve explained that to make the boom-to-foot connection: “You properly rig [the boom] to the assist crane and . . . [o]nce we have it connected, we attach our tag lines on each end, so we can control it. And then when everybody is all on the same page, we lift it and swing it into place and pin it.” Tr. 98. He explained that “[t]his particular pinning is done hydraulically. There is a remote control. You have to get the section close and hook up a few hydraulic lines and line up the holes and insert the pins.” Tr. 99. Schlieve was in charge of making the final connection with the pins. Tr. 99. He was standing on the superstructure catwalk on the Manitowoc 21,000 crane that they were assembling. He was positioned just above the car body. Tr. 101. During the pinning process, Mozley was in the cab of the Manitowoc 21,000 crane. Tr. 99. Rahmlow was located directly below Schlieve, to the left of the assist crane. Tr. 99. Jeff Eick was on the opposite side of the boom from Rahmlow, with a tag line. Tr. 100. One of the oilers was at the other end of the boom and opposite Eick with another tag line, “[t]o control both ends to keep it secure.” Tr. 100.

            Explaining the events of the day, Schlieve testified that it was not a windy day. Tr. 106. However, a sudden gust of wind came, shifting the boom directly toward the cab of the Manitowoc 21,000 crane where Mozley was positioned. Tr. 106-07. To avert the danger to Mozley, Rahmlow told Eick to pull the tag line under the boom. Tr. 107-08. Eick did so by moving to the other side of the boom. This was the only time that Eick moved under the boom throughout the entire operation. Tr. 111. When Vilona arrived at the site, Eick had already completed his move under the boom, and the crew had succeeded in getting the boom squared off. Tr. 109. Schlieve, who was only 15 feet away from Rahmlow, confirmed that he never saw Rahmlow positioned under the boom. Tr. 110.

            The boom-to-foot connection process can be difficult because “you only have inches to work with to make this connection.” Tr. 112. The lattice boom weighs 93,000 pounds. Tr. 112. Schlieve thought that the rigging involved in hoisting and positioning the boom was sufficient. Tr. 112. The crew followed the manufacturer’s instruction manual for how to assemble the Manitowoc 21,000 crane. Tr. 111. In Schlieve’s opinion, Eick needed to move under the boom in these circumstances, because “it would have been more of a hazard if that boom would have hit or bumped the cab where [Mozley] was.” Tr. 113. By Schlieve’s estimations, the car body was about 10 to 11 feet above the ground and the boom was about 12 to 15 feet above the ground at its lowest point. Tr. 112, 114. The boom was on a direct path to hit the cab. The oiler on the other tag line could not use his tag line to correct and control the lattice boom. Tr. 123. Eick had to come under the boom and to the other side for the crew to be able to direct the boom away from Mozley. Tr. 123. According to Schlieve, it takes two people on a tag line, if not more, to control the boom. Tr. 123. Rahmlow helped pull on the tag line with Eick once Eick came to his side. Tr. 123-24. There were no other tag lines other than Eick’s and the oiler’s. Tr. 124, 126. In Schlieve’s opinion, Vilona’s interruption of the operation in the middle of this critical phase, caused a dangerous situation. Tr. 115-16.

Jeffrey Eick

            Jeff Eick has been employed by Dawes for 10 years. Tr. 129. His current job title is driver and crew member on crane jobs. Tr. 129. He has held these positions since he began at Dawes. Tr. 129.

            On May 27, Eick was part of the crane assembly crew. Tr. 133. Eick’s job was to use the tag line to “steady the boom.” Tr. 137. Eick recounted what happened when the gust of wind came as follows: “[T]he [boom] started to [swing] a little bit. . . . And at that point, Bill said to me, get over here. And I was already on my way, because at the time the heel [of the boom] was going to . . . hit the cab [that Mozley was in].” Tr. 134. According to Eick, the decision to go under the boom was “a split decision.” Tr. 139. There was no time to reflect on whether it was wise. Tr. 139. As to the danger posed to him because he moved under a suspended load, Eick was convinced that if the rigging had failed and the boom had fallen while he was underneath it, the boom would not have hit him. Tr. 139-40. He explained that the boom would have fallen on the car body instead, which was 10 feet off the ground; he is just over six feet tall, so he would have had plenty of clearance. Tr. 140. Eick acknowledged, however, that loads fall unpredictably, implying that it is hard to argue that he would have definitely been safe if the boom had fallen while he was passing under it. Tr. 150.

            Eick testified that he never saw Rahmlow go under the boom, although Rahmlow was close to the side of the boom. Tr. 138, 150. Eick saw being under the boom and close to the boom as “two different things.” Tr. 150.

            Eick was in close proximity to Rahmlow when Vilona came down to the crane assembly site. Tr. 142. Eick described the exchange between Vilona and Rahmlow. As he recalled, Vilona said:

You’re working, standing under the boom. . . . And Bill said, no, I’m not. And [Vilona] said, well, your guy is. And Bill said, yes, he was; referring to myself because I had ran under the boom. And at that time [Vilona] wanted to kind of cease operation. And Bill became upset. And what [Bill’s] exact words were, I don’t recall. Something to the effect of: Just give me the ticket or whatever. I heard that part of it, because at that point, we had to make this [boom-to-foot] connection before we stopped.

Tr. 142. Eick maintained that it was dangerous to stop operations right at the moment that Vilona arrived because the boom-to-foot connection is a critical pick. Eick continued:

But not only that, but then if we were to stop in the middle of it, now we have a suspended load that is, you know, really not secured until it is pinned. So, I mean, we would have been open to a wind gust. It could have damaged parts on the crane, the cab. I mean, there is – there is a lot of things that can probably happen.

Tr. 142-43. It was five to ten minutes between the time that Vilona showed up and the crew completed the connection process. Tr. 143. In Eick’s opinion, stopping the operation immediately when Vilona arrived would have “been more of a hazard than finishing the job.” Tr. 145-46.

Bill Rahmlow

            Bill Rahmlow worked for Dawes for 21 years. Tr. 153. He was an AD Director at the time he retired, and he held that position on May 27, 2010, when the citation was issued. Tr. 153. An AD Director oversees the assembly of a crane. Tr. 153. Rahmlow had 10 years of experience assembling cranes. Tr. 158. Prior to that, he spent 10 years operating a crane. Tr. 158. Rahmlow had never before set up a Manitowoc 21,000, but he had assembled a great many cranes during his career. Tr. 165. He testified that setting up any type of crane is essentially the same process. Tr. 165. As AD Director, he was responsible for making sure that the job was set up properly, that employees were not in danger, that people were not under the suspended load, that people were not in the way of pinch points, that he had an adequate number of people, and that the proper number of tag lines were being used. He also had to consider all variables that could affect the assembly, such as wind, weather, and rigging failure. Tr. 179-80.

            In assembling the crane on May 27, Rahmlow closely followed the manufacturer’s crane assembly manual. Tr. 150. He began the Tilden Mine project in May, when he “set up the level pad for [the crane] . . . and [laid out] all [of its] pieces . . . in the proper order [to] make sure that everything [is] put together as the manual call[s] for.” Tr. 160. For the boom-to-foot connection, Rahmlow positioned the two men with the tag lines on opposite sides and opposite ends of the boom from each other. Tr. 163. Eick and Rahmlow were close to the end of the boom by the crane body, standing across from each other. Rahmlow positioned the oiler with the tag line towards the other end of the 150-foot boom , on the opposite side of the boom from Eick. Tr. 169-70. Rahmlow maintained that the reason for having the tag lines on opposite sides of the boom is:

To try to predict which way that boom is going to move. Remember, the boom is, like, taking a string. And whenever there is a reaction . . . – wind, gust of wind or movement of the other crane – that piece can swivel . . . . It’s unpredictable . . . . And any reaction causes another reaction. The swing of the crane can cause it, today, to go to the left. Tomorrow it might go to the right.

Tr. 163. Rahmlow reflected: “That day we should have had the tag line on the other two corners. Maybe we should have had four on. It didn’t have enough people to have four on. It just – it’s just the way it happened.” Tr. 164. Rahmlow maintained that the day was not windy. Tr. 164. He could not have predicted that there would be a wind gust. Tr. 165. When the counsel for the Secretary asked why Rahmlow did not request Cliffs Natural Resources for more men to help with the crane assembly, Rahmlow replied that he could not because “they aren’t familiar with it; and we never – we never ask for outside help . . . . It’s a case of liability.” Tr. 181.

            When the gust of wind blew, Rahmlow instructed Eick to come under the boom to his side with the tag line because Rahmlow saw that the gust was causing the boom to head towards the cab. “And I did not want that boom section to hit that glass because, number one, [Mozley] was sitting there.” Tr. 168-69. Rahmlow acknowledged that every manual, guidebook, and training session forbids going under a suspended load. Tr. 192-95. However, he chose to have Eick come under the boom instead of signaling to the oiler to try to adjust the boom’s movement with his tag line because Rahmlow had never worked with the oiler before. Tr. 169. He did not know if the oiler would understand what needed to happen. Tr. 169. Also, Eick was 15 feet away from Rahmlow, whereas the oiler was almost 150 feet away. Tr. 169. Rahmlow was not sure he could communicate effectively to the oiler. Tr. 169. Rahmlow testified that Eick coming under the boom with the tag line averted the hazard to Mozley. Tr. 170. He also felt that the hazard to Mozley was greater than the hazard to Eick. Tr. 173.

            Rahmlow described the boom-to-foot connection as being a tedious, time-consuming process. Tr. 166. The boom has to be lined up perfectly for the pins to go in. Tr. 166. The process takes a lot of concentration. Tr. 166. It is necessary to be in close proximity of the suspended boom. Tr. 166. Rahmlow testified that he was right next to the suspended boom, but not under it. Tr. 166-67, 199. It was never necessary to stand under the boom during the process. Tr. 167. However, he would not be able to perform the boom-to-foot connection operation from a distance further away from the boom. Tr. 199-200.

            Rahmlow estimated that the road from which Vilona first observed the crane assembly process was 150 yards from the site. Tr. 177. He also estimated that the hill the road was on was 80 feet high. Tr. 177. In his experience, Vilona’s vantage point from the top of the hill was a bad one for observing what was actually going on at the assembly site, because Rahmlow was so close to the boom that anyone that far away could think he was actually under the boom. Tr. 177-78. According to Rahmlow, to see if he was under the boom or to the side of the boom, someone would have to be standing “[r]ight in line with the boom.” Tr. 178. Rahmlow understood section 56.16009's command to “stay clear of suspended loads” to mean that if he was “alongside of it, [he was] not underneath it.” Tr. 189. He did not understand the standard to mean anything more than not being directly underneath a suspended load. Tr. 189.

            When Vilona came down to the assembly site and said Rahmlow was under the boom, Rahmlow replied that he was not under the boom. Tr. 170. However, he agreed with Vilona when Vilona said that Eick had been under the boom. Tr 170. According to Rahmlow, Vilona wanted to talk immediately, and Rahmlow wanted to secure the boom, in case something went wrong while they were talking. Tr. 171. Rahmlow could neither confirm nor deny whether he told Vilona that sometimes he had to go under the suspended load to make sure everything was lining up correctly. Tr. 183-84. He explained that he could not remember what he said in the heat of the moment. Tr. 184. Rahmlow stated that when Vilona tried to discuss the violation with him, the crew was in the middle of a critical pick. Rahmlow was concentrating on the connection process to get everything lined up perfectly, to make sure the boom did not hit the cab that Mozley was in, and to make sure that Schlieve did not get pinched. Tr. 167-68. Rahmlow recalled telling Vilona, “write me the ticket out.” Tr. 184.

Richard Peters

            Richard Peters has been employed by Dawes for 31 years. Tr. 204. He has held the position of engineer and safety manager for 25 years. As safety manager, his safety duties include: “keeping up with the guys’ training, supervising that they comply with regulations, safety policies and practices . . ., everything [of] that nature.” Tr. 204-05.

            Peters described the safety training the company provides its employees:

We have various sort of meetings, gatherings. The other fellows have mentioned the annual safety meeting, which we cover very large topics, somewhat intensely. We have toolbox meetings where we cover small bits specifically. They’re every week. That’s where the guys get their check[s]. . . . We have safety memos that also attach to checks. We do a lot of one-on-one. [O]ne of the ways I prefer, is to take a guy and work with him on a specific problem or area he needs work on. Just work with him, teach him, train him. We have many others . . . long, experienced supervisors that do the same. We are very strong on taking new employees and putting them with somebody to give them a hands-on training.

Tr. 207.

            Peters also explained how the company ensures compliance with safety rules.

You watch the people constantly. . . . [Another safety department worker] and I will drop in on job sites . . . [and] watch them. In my case, after [the employees] see me, it’s too late because I’ve seen everything. I don’t show up until I have watched . . . [their] job [performance], see how everybody is doing; but I never leave without making myself known. And we . . . discuss what has happened, and why they’re doing a great job, [or why they] need to catch up on something. I might need to talk to a customer because we also train customers as well as our own people. And we do have our other supervisors that get out in the field. Equipment managers [and] branch managers, also look over job sites, and [what] the guys are doing when they’re out on these jobs.

Tr. 208-09. Peters stated that the company takes these inspections, and the results of these inspections, very seriously, even going so far as to suspend or terminate an employee for violating safety rules. Tr. 209.

            Peters testified that Dawes conducted an investigation of Rahmlow’s behavior and work practices after the citation was issued on May 27. Tr. 211. Dawes removed Rahmlow from the job site, “in case he had made an infraction that was a real bad move. We didn’t want to jeopardize safety on the job site. So Rahmlow was removed while the investigation proceeded, until we found out what the real story [was].” Tr. 211.

            Peters maintained the company investigation revealed that:

[E]verything was proceeding normally, according to plan; but that as things got close – and we’re talking about putting the main boom into the crane – that somewhere a gust of wind had come swirling around the building, and . . . the main boom started to swing toward the cab of the [Manitowoc] 21,000, which was occupied. And steps had to be taken to stop that motion and [bring] that section of boom back online where it belonged before any damage or injury could occur.

Tr. 213. “We determined that . . . was the safest course of action considering the possibilities for injury and damage that were occurring at that time.” Tr. 213. The weather that day was good for working. Tr. 215. There was no high wind. Tr. 215. Peters agreed that staying clear of a suspended load is both an OSHA and an MSHA rule. Tr. 208. He believed that the rule is essentially the same under both agencies’ standards. Tr. 208. The company determined that Rahmlow understood the suspended load rule. Tr. 213.

            In response to the suggestion made by the Secretary that Rahmlow should have been using four tag lines instead of two, Peters noted that it is not normal industry practice to use four tag lines on this kind of operation. Tr. 214-15. Furthermore, there is no MSHA or OSHA regulation requiring that four workers each be holding a tag line during the crane assembly process. Tr. 230.

THE ISSUES

            The issues are: (1) whether there was a violation, (2) if there was a violation, whether the violation was S&S, (3) if there was a violation, whether the violation was the result of an unwarrantable failure to comply with a mandatory safety standard, and (4) if there was a violation, the amount of the civil penalty that must be assessed for the violation, taking into consideration the civil penalty criteria set forth in section 110(i) of the Act. 30 U.S.C. § 820(i).

THE VIOLATION

            As has been frequently noted, section 56.16009 requires that persons “stay clear of suspended loads.” 30 C.F.R. §56.16009. “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.” Haines and Kibblehouse, 30 FMSHRC 504, 517 (June 2008) (ALJ). Remaining “clear of suspended loads” has been widely understood to mean among other things remaining clear of the area under a load and the “area which the load would strike in falling, or after impact, in toppling over.” Anaconda Co., 3 FMSHRC 859, 861 (Apr. 1981) (ALJ). In short, “in order to comply with the cited standard and be ‘clear’ of the suspended loads, miners must not only be outside the limit of the point of suspension, i.e., the limit of the arc or swing of the load, should the load move/spin, but also must not be underneath the load or in the area that would be affected should the load fall.” CCC Group, Inc., 2012 WL 2175816, at *6 (F.M.S.H.R.C.) (May 2012) (ALJ).

            In this case, there was a violation. Most obviously, Eick walked under a suspended load, a blatant violation of the standard. The record also supports finding that Eick, Rahmlow, and Mozley were in violation of the standard when standing (Eick and Rahmlow) and sitting (Mozley) in their positions before and after Eick walked under the suspended load. Eick stood about 15 to 20 feet across from Rahmlow, Tr. 126, who stood just barely on the other side of the boom from him. Tr. 150, 166-67, 199. Thus, Eick stood only a couple feet from the boom, which was 13 feet wide. Tr. 198. This was undoubtedly within the swing/arc/fall path of the 150-foot boom. While it is true that the boom was 12-15 feet above the ground, Tr. 114, 169, and therefore would not have bumped into Eick or Rahmlow if the boom swung, if the rigging failed and the boom fell while swinging slightly, it could have fallen on Eick, given his position in relation to the boom. Tr. 142, 170.

            Rahmlow also failed to remain clear of a suspended load. Rahmlow stood right beside the boom. Tr. 150, 166-67, 199. He stood so close to the boom that only someone within several feet of him and aligned properly with him and the boom could tell that he was not under the boom. Tr. 177-78. While the company’s argument that Vilona was too far away to be able to be sure that Rahmlow was under the boom is persuasive, and while I credit the company’s witnesses that Rahmlow was standing right next to the boom, not under it, standing immediately adjacent to the boom still put Rahmlow within the suspended load’s possible arc or swing, and therefore in danger, and in violation of the standard. Eick, once he moved to stand by Rahmlow, remained in violation of the standard. Eick also stood directly adjacent to the boom at that point, Tr. 141, when both Rahmlow and Eick were pulling on the tag line to steady the boom. Tr. 123-24.

            Mozley also failed to remain clear of a suspended load, although his positioning was not discussed by the inspector or the Secretary. Mozley’s position was the reason why Eick and Rahmlow felt they needed to violate the standard – given the way the tag lines were arranged, Mozley was in the direct swing path of the boom as the boom adjusted to the gust of wind. Tr. 106-07. Both Eick and Rahmlow testified that had they not acted, the cab where Mozley was sitting would have been hit by the swinging boom. Tr. 134-35, 168-69.

            The company contends that Rahmlow, Mozley, Eick, and the oiler were complying with industry practice where they were standing, and Rahmlow testified that he could not have completed the boom-to-foot connection from further away from the boom, and therefore there was no violation. The company suggests that industry custom holds enough weight that the boom-to-foot connection should be an exception to the rule of staying clear of the swing and fall path of a suspended load. Given the intent of the regulation, to “prevent persons from being hit” by suspended loads, Haines, 30 FMSHRC at 517, Respondent’s argument fails. If the company could not complete the connection without violating the standard, it could have petitioned the Secretary for a modification to the standard under Section 101(c), which provides that MSHA may grant a modification so long as there is an alternative method for achieving the goal of the standard (i.e., protecting miners from suspended loads) that will guarantee no less than the same measure of protection to the miners as the existing standard. 30 C.F.R. § 811(c). Without an authorized modification, there is no exception to the standard, and non-compliance is a violation. Rahmlow should have had more tag lines. He should have set up the tag lines such that the team would be able to control the boom no matter which direction the wind came from. Eick’s and the oiler’s tag lines should have been longer so that they could stand completely out of the swing path of the boom. Where Rahmlow and Mozley should have been positioned so that they still could have performed their jobs effectively while in compliance with the safety standard is a question that the crane assembly industry may have to address, perhaps with the Secretary.

S&S AND GRAVITY

            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). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation, the Secretary must prove: (1) the underlying violation; (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 3-4 (Jan. 1984) accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

            It is the third element of the S&S criteria that is the source of most controversies regarding S&S findings. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). 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. Texasgulf. Inc., 19 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7 FMSHRC at 1130.

            Furthermore, 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 the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996).

            I have found a violation of the cited safety standard. I further find that the employees’ positioning with respect to the suspended boom constituted a discrete safety hazard. As already discussed, there were a number of ways in which Dawes’s employees were endangered. The rigging could have failed and the boom fallen on Eick, or if it swung before it fell, on Rahmlow. The boom could have swung and hit Mozley in the cab. Eick claimed that if the boom fell as he was walking under it, the boom would have hit the cab and been propped up such that Eick, who is over six feet tall, would not have been hit. However, as Eick admitted, the boom could have fallen unpredictably. Tr. 150. It could have missed the cab, particularly given that there had just been a gust of wind, in which case the boom could have swung and fallen on Eick.

            As discussed earlier and as evident by the instant discussion, Eick, Rahmlow, and Mozley were all in violation of the safety standard, and that violation put each of them in discrete danger. Vilona found that two persons (Eick and Rahmlow) were endangered by the violation. Citation No. 6502467. Generally, deference is given to the inspector’s findings. See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995) (ALJ did not abuse discretion in crediting expert opinion of experienced inspector); and Mathies Coal Co., 6 FMSHRC 1, 5 (Jan. 1984). However, in this case, I find that three, not two, persons were affected by the violation, thus making the discrete safety hazard more serious.

            I also find that there was a reasonable likelihood that the hazard contributed to would result in an injury. I credit Inspector Vilona’s testimony that any time a suspended load is involved, there is a reasonable likelihood that the rigging could fail, causing the suspended load to swing or fall, pinning, hitting, or crushing anyone who has failed to remain clear of the suspended load. Tr. 40. Likewise, when working outdoors with a suspended load, the possibility of wind is always a factor that could reasonably result in a swinging load, as it did here, which could result in a hitting or pinning injury, or a crushing injury. See Tr. 40. Further, there was a reasonable likelihood that Mozley could have been hit by the swinging boom because of the onset of wind and his position in the cab of the Manitowoc 21,000 crane. In fact, as everyone agreed, in the instant situation, the boom was headed Mozley’s way, and Eick had to move, putting himself in danger and in direct violation of the safety standard, in order to prevent the boom from hitting the cab that Mozley was in. Tr. 139-40.

            Dawes maintains that the rigging was secure and unlikely to fail. Rahmlow examined the rigging before the crew began assembling the crane that morning. Tr. 151. He put together the rigging as the assembly manual instructed. Tr. 150, 160. Eick felt that the rigging was sufficient. He believed that it was completely secure given the load and the demands on it, Tr. 151-52, as did Schlieve, Tr. 112. Therefore, in the minds of Rahmlow and the crew, there was very little chance that the rigging would fail. However, rigging does fail. See Tr. 40. One reason for the safety standard to stay clear of suspended loads is because suspended loads are apt to fall. As the Secretary pointed out, under the company’s work policy, its AD Director is responsible for setting up the work site to be a safe environment. As AD Director, Rahmlow had to consider all circumstances that could affect work site safety, such as wind or failed rigging. Tr. 179-80. The day was beautiful and was not windy. Tr. 164. Nevertheless, a gust of wind blew up that Rahmlow had not predicted, putting Mozley, Eick, and himself in danger. Tr. 106-07, 134, 165. As the events of the day showed, injuries reasonably could have occurred.

            Finally, I find that there was a reasonable likelihood that the injuries would be of a reasonably serious nature. If the boom, which was 93,000 pounds, had fallen or swung and hit one or more of Dawes’s employees, the resulting injury or injuries would have been extremely serious, if not fatal. Therefore, the violation was S&S in nature.

            I also find that given the likely injuries if the feared hazard occurred, the violation was very serious.

UNWARRANTABLE FAILURE AND NEGLIGENCE

            A citation is issued under section 104(d)(1) of the Mine Act if a violation is both S&S and caused by the unwarrantable failure of the operator. 30 U.S.C. § 814(d)(1). I have found that the violation of section 56.16009 was S&S. I also find the violation was the result of the company’s unwarrantable failure.

            The term “unwarrantable failure” is defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Emery, 9 FMSHRC at 2203-04. Whether conduct is “aggravated” is determined by analyzing the facts and circumstances of the case and identifying whether any aggravating factors exist. Such factors include the length of time the violation existed, the extent of the violative condition, whether the operator was placed on notice that greater efforts were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious and posed a high degree of danger, and the operator’s knowledge of the existence of the violation. Jim Walter Resources, Inc., 28 FMSHRC 579 (Aug. 2006).

            The length of time the violation existed can be analyzed in two respects in this case. In both respects, I find that the length of time was excessive. One measurement of the length of time that the condition existed is the amount of time the men were in violation of the standard during the crane assembly operation that morning. Eick crossing beneath the 13-foot-wide boom probably amounted to several seconds. However, it is so dangerous to cross beneath a suspended load that any amount of time of being directly beneath a suspended load is excessive. Further, Eick and Rahmlow presumably stood alongside the boom all morning. Mozley also was probably in the cab much of the morning. At any time that morning, a gust of wind could have come, swinging the boom out of control. Or, at any time the rigging could have failed. Therefore, at any time the boom could have hit, pinned, or crushed the men who were in its swing and fall path.

            Another measurement of the length of time the condition existed is gained through viewing the positioning of the men as a continuing practice. Tr. 45-46. Rahmlow had been assembling cranes for 10 years. Tr. 158. Schlieve had been assembling cranes for at least 14 years. Tr. 88. Eick had been working with cranes for 10 years. Tr. 129. Peters had been safety manager at Dawes for 25 years. The record reveals that none of these men thought “stay clear of a suspended load” meant anything more than not to position oneself beneath a suspended load. Tr. 113, 150, 189, 208. No one at Dawes understood that Rahmlow standing immediately adjacent to the inadequately tethered boom was a violation of the standard. It is clear that Dawes’s widely held and flawed belief as to what constituted compliance with section 56.16009 existed for some time, making it an extensive violation.

            The company has a good safety record. In the previous 15 months, the company had never been cited by MSHA for violating the suspended load standard. Gov’t Ex. 14. Therefore, the company was not directly put on notice. However, the standard and its intent are clear and straightforward. The Secretary did not change her definition or her interpretation of the standard. A fundamental misunderstanding of the law is not an excuse for a violation.

            The violation was open and obvious and posed a high degree of danger. That Eick violated the standard in crossing beneath the suspended boom was obvious. Further, had the men properly understood the safety precautions they were supposed to take under the standard, the fact that they were positioned in violation of the standard would also have been obvious. Further, as concluded in the S&S discussion above, the violation posed a high degree of danger. Should the boom have swung into or fallen on one or more of the men, a fatal injury was reasonably likely to result. (The boom weighed 93,000 pounds. Tr. 112.)

            Finally, the violation occurred under the immediate and direct supervision of Rahmlow, a company supervisor. Given all of these factors, I find that the violation was the result of the company’s unwarrantable failure.

            This violation was also the result of the company’s high negligence. The potentially grave danger to its employees meant that Dawes’s management was called to a commensurately high standard of care. It is clearly a standard the company did not meet.

            In making unwarrantable failure and high negligence findings, I recognize that Dawes provided some mitigating information. Rahmlow quickly had Eick cross under the boom to prevent Mozley from being hit. Rahmlow tried to avert a greater danger by encouraging a lesser one. Tr. 113, 173. Rahmlow and the crew also made sure to abide by the standard as best they understood it. They did not, except for Eick, position themselves directly below the suspended load. Tr. 189, 208. The record also confirms that Dawes went to great lengths to train its employees and have refresher training sessions. The company reinforced the importance of safety and compliance with safety regulations, going so far as to conduct its own internal safety inspections. See Tr. 89-94, 97, 130, 154, 156, 159, 207-09. While the mitigating factors do not negate the violation or its S&S and unwarrantable natures, they will to some extent impact the penalty that must be assessed.

REMAINING CIVIL PENALTY CRITERIA

HISTORY OF PREVIOUS VIOLATIONS

            The Secretary conceded that Dawes has a small history of previous violations. Tr. 15.

SIZE

            The parties agreed that the operator is of a medium size. Tr. 15.

ABILITY TO CONTINUE IN BUSINESS

            The parties stipulated that the proposed penalty will not adversely affect the company’s ability to continue in business. Jt. Ex. 1; Tr. 13-14

GOOD FAITH ABATEMENT

            No abatement requirements were made because by the time the inspector arrived at the assembly site, no one was positioned beneath the boom anymore. Tr. 31-33. The crew took five to ten minutes to complete the critical boom-to-foot connection before quitting activity and talking with Inspector Vilona. Tr. 143, 167-68, 171. It was necessary to complete the connection because if the crew had left the job half done, a 93,000-pound, 150-foot-long boom would have remained suspended in the air at the mercy of the wind and possible rigging failure, creating an even greater hazard. Tr. 115-16, 142-46.

CIVIL PENALTY ASSESSMENT

CITATION NO.       DATE            30 C.F.R. §     PROPOSED ASSESSMENT

6502467                      5/27/10           56.16009         $3,000

            I have found that the violation existed, that it was serious, and that the negligence of the company was high. Given these findings and the other civil penalty criteria, I would normally assess the penalty as proposed. However, the company’s small history of previous violations, which reflect its admirable internal procedures to enhance compliance and work-site safety warrant a lesser assessment.

ORDER

            It is ORDERED that Citation No. 6502467 be MODIFIED to increase the number of persons affected by the violation from “two” to “three.”

            Within 40 days of the date of this decision, Dawes Rigging & Crane Rental IS ORDERED to pay a civil penalty totaling $2,500 for the violation of section 56.16009 set forth in Citation No. 6502467. Payment SHALL be sent to the: Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, S1. Louis, MO 63197-0390.Upon payment of the penalty, this proceeding IS DISMISSED.

/s/ David F. Barbour

David F. Barbour

Administrative Law Judge

Distribution: (Certified Mail)

Natalie E. Lien, Esq., U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202

Tod T. Morrow, Brady, Esq., Morrow & Meyer, LLC, 6279 Frank Ave. NW, North Canton, OH 44720