Secretary of Labor v. Bragg Crane Service

Plain-English summary

Bragg Crane Service used a crane to move a 40,000-pound hopper at Spanish Springs Pit #6. Judge David Simonton found that a Bragg employee briefly entered the established 10-foot fall zone around the suspended load, violating the rule that persons stay clear of suspended loads, but the evidence did not show that he stood directly under the hopper. The judge found that careful lift preparation, adequately rated equipment, and the low likelihood of the hopper falling made the violation non-S&S and unlikely to cause injury, although a falling load could cause a fatal injury. He also rejected the high-negligence designation because the employee was not a supervisor, entered the fall zone only momentarily, and Bragg had taken substantial safety precautions. The citation was modified to low negligence and a $200 penalty, reduced from the proposed $2,615.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.16009
• Outcome: The citation was affirmed but modified to non-S&S, unlikely injury, and low negligence, with a $200 penalty.
• Key point: Entering a suspended load's fall zone violates the standard even without standing directly beneath the load, but S&S and negligence depend on the actual likelihood of a fall and the surrounding precautions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th ST.
SUITE 443

DENVER, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

March 26, 2020

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH      

ADMINISTRATION, (MSHA),

Petitioner,

v.

BRAGG CRANE SERVICE,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2019-0303

A.C. No. 26-00803-487971 6KB

Mine: Spanish Springs Pit #6

DECISION AND
ORDER

Appearances:              Sonya
P. Shao, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa
Street, Suite 370, Los Angeles, CA 90071

Perry
P. Poff, Donell, Melgoza & Scates LLP, 3300 Sunset Boulevard, Suite 110,
Rocklin, CA 95677

Before:                                    Judge Simonton

INTRODUCTION

This case is before me on a
petition for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration, against Bragg Crane
Service (“Bragg” or “Respondent”), pursuant to the Federal Mine Safety and
Health Act of 1977 (Mine Act), 30 U.S.C. § 801. [1]
This case involves one Section 104(a) citation alleging a violation of 30
C.F.R. § 56.16009. The Secretary proposed a penalty of $2,615.00. The
citation was designated as significant and substantial (S&S), highly likely
to result in a fatal injury, and involving high negligence on the part of the
Respondent.

The parties presented testimony and
documentary evidence at a hearing held in Reno, Nevada on October 23, 2019. MSHA
Inspector Kimberly Hakala testified for the Secretary. Bragg mechanic/oiler
Kyle McPartland, crane operator Zachary Cramer, and branch manager Dean Stone
testified for Respondent. After fully considering the testimony and evidence
presented at hearing and the parties’ post-hearing briefs, I modify Citation
No. 9374373 as set forth below. I assess a penalty of $200.00 .

STIPULATIONS OF FACT

At hearing, the parties agreed to
the following stipulations of fact included in their prehearing submissions:

Respondent was at all times relevant to this matter an
independent contractor performing services or construction at Spanish
Springs Pit #6.

The subject mine is a “mine” as that term is defined in
Section 3(h) of the Mine Act, 30 U.S.C. § 802(h).

At all times relevant to this case, the products of the
subject mine entered commerce, or the operations or products thereof
affected commerce, within the meaning and scope of Section 4 of the Mine
Act, 30 U.S.C. § 803.

Bragg Crane Service is subject to the jurisdiction of the
Mine Act, 30 U.S.C. § 801, et seq .

These proceedings are subject to the jurisdiction of the
Federal Mine Safety and Health Review Commission and its designated
Administrative Law Judges pursuant to Sections 105 and 113 of the Mine
Act, 30 U.S.C. §§ 815, 823.

30 C.F.R. § 56.16009 is a mandatory health or safety
standard as that term is defined in Section 3(1) of the Mine Act, 30
U.S.C. § 802(1).

The citation contained in Exhibit A attached to the
Petition for Assessment of a Penalty for this docket is an authentic copy
of the citation at issue in this proceeding.

The individual whose name appears in Block 22 of the
citation at issue in these proceedings was acting in her official capacity
as an authorized representative of the Secretary when the citation was
issued.

The exhibits offered by the parties are authentic, but no
stipulation was made as to their relevance or the truth of the matters
asserted therein.

Joint Prehearing Statement at 3; See Tr. 7.

SUMMARY OF TESTIMONY

The Secretary

MSHA Inspector Kimberly Hakala [2] testified for the
Secretary. She stated that on December 10, 2018, she went to Spanish Springs
Pit #6 to conduct a regular inspection. Tr. 14. Once she arrived, she learned that
Bragg was on site that day to pick a hopper away from the primary plant. Tr.

15. She testified that Martin Marietta’s plant manager, Abram Woodward, accompanied
    her while she observed the pick, and that he took photos. Tr. 17.

The hopper was lifted off of the
plant, rotated, and placed on the ground. Tr. 18, 21, 24, 64–65. Hakala witnessed
the entire job from an elevated catwalk, approximately 60–80 feet away from where
the load was ultimately placed. Tr. 44–45, 69–70; see Tr. 17; Ex. S–7,
p. 2. Hakala testified that two tag lines were attached to the load, and that one
of the lines was initially held by a man on an elevated catwalk. Tr. 19, see
Ex. S–7, p. 2. She stated that the man moved along the catwalk while
holding the tag line and then threw the tag line to the ground to be retrieved
by another miner. Tr. 19. Then, according to Hakala, a Bragg employee and a
Martin Marietta employee who were both on the ground “moved in”—the Martin
Marietta miner to retrieve the tag line and the Bragg miner to observe where
the hopper was in relation to the plant structure. Tr. 19–20.

Hakala testified that when the two
miners moved in towards the tag line, the hopper was positioned directly above
them. Tr. 20. She issued a verbal imminent danger order [3] to Woodward based
on her observation that the miners were standing beneath the load and were in
danger of being struck by it. Tr. 21. Hakala stated that Woodward shouted down
to the miners, they moved out from under the load, and “within moments both of them
came back in.” Tr. 22–23. After Hakala told Woodward again to remove the miners
from the area, he shouted to them a second time and they thereafter stayed out
from underneath the suspended load. Tr. 23. Hakala explained that she believed
the miners went back in the second time in order to retrieve the tag line again,
since they had dropped it the first time they were told to move away from the load.
Tr. 23.

Hakala further testified that after
the hopper was placed on the ground, she and Woodward made their way down to
the ground level to have a safety briefing with the miners, where she explained
why she issued the imminent danger order. Tr. 24, 53. She stated at hearing
that McPartland, the Bragg employee on the ground during the pick who identified
himself as the “leadman,” told her during this safety briefing that he was not
directly under the load but was two feet to the side of it, within the “fall
zone” of the hopper. Tr. 24–26, 56.

The Respondent

Bragg mechanic/oiler Kyle
McPartland, [4]
crane operator Zachary Cramer, [5]
and branch manager Dean Stone [6]
testified for Respondent. McPartland was the signalman for this job, and
asserted at hearing that he has no supervisory responsibility in his position. Tr.
96, 114. He testified that after the Bragg employees arrived at the mine site
on December 10, 2018, they received site-specific training and were then
escorted to where the hopper was located to set up the crane and had a safety
meeting with the Martin Marietta employees involved in the job. Tr. 99–100. McPartland
said that the dimensions of the fall zone—the area where the hopper might end
up in the event it fell or tipped over—were not discussed in exact terms. Tr.

133. Once the rigging was set up and the miners were getting ready to pick the
     hopper, Inspector Hakala arrived and asked a few questions. Tr. 102.

McPartland stated that the lift
began upon his signal, while he was located on an elevated catwalk observing
the boom angle of the crane. Tr. 105–06. He and one Martin Marietta miner then
went down to the ground level to observe the hopper’s location as it was moving
into place. Tr. 107–08; see Ex. S–7, p. 2. By his estimate, Hakala was
80 to 90 feet away from him at this point in the pick. Tr. 108.

According to McPartland, the tag line
held by the miner who stayed up on the catwalk was never dropped. Tr. 109. McPartland
stated that the miner was preparing to throw the line down to the Martin
Marietta miner on the ground right before Woodward yelled at him not to throw
it. Tr. 109. The load was brought in closer and rotated accordingly—without
either tag line ever being dropped—and then lowered onto the ground. Tr. 108–09,
140–41.

McPartland testified that Hakala
talked to him individually once the load was on the ground. Tr. 115. According
to him, she never questioned him about how close he was to the load or whether
he would have been struck by the load if it fell. Tr. 115. McPartland stated
that he remembered his conversation with Hakala to be limited to questions
about his name and his role in the company and about her opinion that more tag
lines should have been used. Tr. 116.

McPartland asserted that he moved
away as the hopper was moving closer to him, and that no miner ever entered an
area where he would have been struck by the load. Tr. 116, 149. He stated that
the closest he was to the load as it was lowered was 10 feet away. Tr. 117.

Zachary Cramer operated the crane
during the inspection at issue. According to Cramer, it was Martin Marietta—not
Bragg—that decided to use two tag lines to control the load. Tr. 164–65. He
testified that at one point, he heard someone yell “stop, don’t throw the tag
line down” as the Martin Marietta crew member on the catwalk holding the tag
line was coiling up the line and apparently preparing to throw it down. Tr.

170. He stated that the miner never threw the line down and held onto it until
     the hopper was on the ground. Tr. 170.

Cramer testified that a fall zone
of 10 feet was identified prior to the pick, and that everyone involved in the
job was told to stay 10 feet clear of the hopper. Tr. 173–74. He stated that he
never saw anyone enter the fall zone, and that no one was ever in danger of
being crushed by the hopper. Tr. 168, 172. He said that if he had seen someone
in the fall zone, he would have stopped operation of the crane immediately. Tr.

168. Cramer also testified that though he heard Inspector Hakala was on site
     that day, he never saw or spoke to her. Tr. 163.

PARTY ARGUMENTS

Secretary’s Argument

The Secretary argues that
Respondent violated 30 C.F.R. § 56.16009 when employee Kyle McPartland failed
to stay clear of a suspended load. Secretary’s Post-Hearing Brief (Sec’y Br.)
at 6–7. The Secretary alleges that the miner on the catwalk behind the hopper
threw the tag line he was holding down to the Martin Marietta maintenance
worker on the ground. Id . at 3. Following this, the Martin Marietta
miner moved in to retrieve the tag line, and McPartland moved in to observe the
hopper. Id .; Tr. 19, 46. Inspector Hakala observed the miners directly
under the suspended load, and issued a verbal imminent danger order to plant
manager Abram Woodward, who shouted down to the miners to get out from under
the load. Tr. 20–21; Sec’y Br. at 3. The Secretary argues that both miners then
went back into the fall zone and Hakala issued a second verbal order for them
to move out from under the load. Id . After the second warning, they stayed
out from under the load. Sec’y Br. at 3; Tr. 22–23.

The Secretary argues that Hakala
then came down to the ground level and spoke with the miners as a group. Tr. 60–61;
Sec’y Br. at 3–4. During that discussion, McPartland admitted to being two feet
to the side of the hopper’s vertical fall line. Tr. 24; Sec’y Br. at 4. The
Secretary contends that the violation should remain designated as high
negligence and that any injury resulting from the violation would be fatal. Sec’y
Br. at 7–8.

a.      Respondent’s
Argument

Respondent contends that the
citation should be vacated because miners were neither directly under the load
nor in the load’s fall zone at any time during the pick. Respondent’s
Post-Hearing Brief (Resp. Br.) at 13. Respondent alleges that the miners
involved in the pick operation stayed a safe distance from the hopper and moved
away as the load moved. Id . at 13; Tr. 168–69. If anyone had gone under
the load or into the fall zone, McPartland or Cramer would have stopped work. Resp.
Br. at 12, 13; Tr. 117, 168.

Alternatively, Respondent argues that
if a violation occurred, “there was no reasonable likelihood that the crane’s
rigging would fail, or that any employee was otherwise in jeopardy of being
injured by the load.” Id . at 14. Respondent therefore asserts that there
was no likelihood of injury and no negligence. Id . at 15.

DISPOSITION

Fact of Violation

Inspector Hakala alleged in
Citation No. 9374373 that Respondent violated 30 C.F.R. § 56.16009:

Two miners were observed under an
approximate 40,000 pound suspended load while attempting to remove the hopper
from the Primary Plant. One miner was directing the load and the other miner
was trying to grab the suspension line from a third miner who was above the
load. The hopper was suspended approximately 20–25 feet above the miners. This condition
exposes miners to fatal type injuries in the event of an accident. A verbal
imminent danger order was issued to the mine's Plant Manager. Order # 9374371
was issued in conjunction with this citation and citation #9374372.

Ex. S–3.

The standard provides that “[p]ersons
shall stay clear of suspended loads.” 30 C.F.R. § 56.16009. Hakala determined
that the violation was highly likely to result in injury, that the injury could
reasonably be expected to be fatal, and that the violation was significant and
substantial (S&S) and affected two people. Ex. S–3. She determined the
violation was the result of high negligence. Id .

It is undisputed that § 56.16009
requires miners to not only stay out from directly under suspended loads, but to
also stay clear of the area that could be affected if a load were to fall. Sec’y
Br. at 6; Resp. Br. at 10–12; see Anaconda Co. , 3 FMSHRC 299, 301 (Feb.
1981) (considering substantively identical rule later recodified at § 56.16009
per Recodification of Safety and Health Standards for Metal and Nonmetal Mines,
50 Fed. Reg. 4048-01 (Jan. 29, 1985)). The regulation aims “to prevent persons
from being hit by such loads through barring persons from locating within a
hanging load’s possible arc or radius.” Haines & Kibblehouse,
Inc. , 30 FMSHRC 504, 517 (June 2008) (ALJ).

The Commission has long held that
“[i]n an enforcement action before the Commission, the Secretary bears the
burden of proving any alleged violation.” Jim Walter Res., Inc. , 9
FMSHRC 903, 907 (May 1987); Wyoming Fuel Co. , 14 FMSHRC 1282, 1294 (Aug.
1992). The Commission has described the Secretary’s burden as:

The burden of showing something by a
“preponderance of the evidence,” the most common standard in the civil law,
simply requires the trier of fact “to believe that the existence of a fact is
more probable than its nonexistence.”

RAG Cumberland
Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas
Co. , 11 FMSHRC 2148, 2152 (Nov. 1989). For the reasons that follow, I find that
the Secretary has presented sufficient evidence to show that McPartland went
into the fall zone in violation of § 56.16009. However, I find that he did not
go directly under the suspended load.

During this inspection, Bragg’s crane
lifted a 40,000 pound hopper from Martin Marietta’s primary plant and lowered
it onto the ground as depicted in Exhibit 7, page 3. While observing the job, Hakala
stood on an elevated catwalk near where the hopper was located before it was
lifted off of the plant. Tr. 43; Ex. S–7, p. 2, 3. Consequently, the load moved
away from her as it was lowered onto the ground. By both Hakala’s and
McPartland’s estimates, Hakala was approximately 80 feet away from the miners
when she allegedly observed them walk into the fall zone of the suspended load.
Tr. 44, 108. Therefore, in addition to her less-than-ideal vantage point, she
was a significant distance from the miners on the ground.

At hearing, Hakala testified
numerous times that the miners appeared to go directly under the suspended
hopper. Tr. 20, 21, 47, 69. However, she was inconsistent when asked about
particular details of the violation. When asked during cross-examination
whether McPartland was in any danger at the time the critical photo in Exhibit
7, page 2 was taken, she said that “it’s possible if this thing were to tip
that he would be really close to that fall zone where he’s at right
now.” Tr. 45–46 (emphasis added). When later questioned by the court about the
same photo, Hakala said that the entire area inside of the pictured yellow
bollards—within which McPartland is standing in the photo—was within the fall
zone of the hopper with the hopper in its photographed location. Tr. 85–86. On
re-cross, Hakala was again asked if anyone was in the fall zone at the time the
photo was taken. Tr. 91. She responded that “he’s in a position where he
could be as it continues to move .” Tr. 92 (emphasis added). It is unclear
whether Hakala believed McPartland was really close to the fall zone,
definitely in the fall zone, or possibly in the fall zone at the time the photo
was taken. Moreover, she evaded and ultimately failed to answer Respondent’s
question about how high the load was at the precise time the violation occurred,
instead only repeating her estimation of the height of the load at the
beginning of the pick. Tr. 81–82.

Given the above inconsistencies in
Hakala’s testimony and her sub-optimal viewpoint during the inspection, I find that
the Secretary has failed to show by a preponderance of the evidence that
McPartland was ever directly under the suspended load.

Crucially, the Secretary failed
both at hearing and in his post-hearing brief to articulate the specific parameters
of the fall zone in this case. I ascertain nevertheless that the fall zone of
the suspended hopper was 10 feet around the load, particularly because Cramer,
Bragg’s crane operator, testified that “a fall zone was identified” and that
people were told to stay 10 feet clear of the load. Tr. 174.

In its correspondence to MSHA four
days after the inspection, Bragg stated that “no employee was ever less than 6
to 10 feet from the vertical fall line of the suspended hopper.” Ex. R–A,
p. 1 (emphasis added). However, according to Hakala’s notes, written as she
interviewed the miners following the pick, McPartland asserted that the miners
were never directly under the load but were approximately two feet from the
vertical fall line. Ex. S­–4, p. 1; Tr. 26–28. Though the exact distance
between McPartland and the vertical fall line at the moment of violation may be
indeterminate, I find that sufficient evidence supports the finding that he
violated 30 C.F.R. § 56.16009 by entering the established fall zone of 10 feet.

Accordingly, the fact of violation
is affirmed.

Gravity

A
violation is significant and substantial (S&S), “if based upon the
particular facts surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Division, National Gypsum Co. , 3
FMSHRC 822, 825 (Apr. 1981).

In
order to uphold a citation as S&S, the Commission has held that the
Secretary of Labor must prove: 1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard—that is, a measure of danger to
safety—contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. Mathies
Coal Co. , 6 FMSHRC 1, 3 – 4 (Jan. 1984).

The Commission has held that the
second element of the Mathies test addresses the extent to which a
violation contributes to a particular hazard. Newtown Energy, Inc. , 38
FMSHRC 2033, 2037 (Aug. 2016). Analysis under the second step should thus
include the identification of the hazard created by the violation and a
determination of the likelihood of the occurrence of the hazard that the cited
standard is intended to prevent. Id . at 2038. At the third step, the
Secretary must prove there was a reasonable likelihood that the hazard
contributed to by the violation will cause an injury, not a reasonable
likelihood that the violation, itself, will cause injury. West Ridge
Resources, Inc. , 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser
Eng'g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010. Evaluation of the four
factors is made assuming continued normal mining operations. U.S. Steel
Mining Co. , 6 FMSHRC 1573, 1574 (July 1984).

Hakala explained at hearing that
she designated this citation as S&S because “it was reasonable to believe
that there was an injury of a fatal type that would occur.” Tr. 36. She
testified that she designated the citation as highly likely because “it was
highly likely that they could be crushed by this load should it fall .” Tr.
34 (emphasis added).

I have already determined that
Bragg violated § 56.16009, a mandatory safety standard, because McPartland
entered the fall zone of the suspended hopper. The safety hazard posed by the
violation is that the suspended load could injure a miner on the ground if it
were to fall. I find, however, that it is unlikely this hazard would occur. Though
an injury would be of a fatal nature if the load were to fall, Hakala’s
determination that such an event was highly likely is incorrect. Bragg prepared
carefully and took the precautions necessary to ensure that the hopper would be
lifted and relocated without incident. See Tr.120–28; see also Ex.
R–A. The load was unlikely to fall.

Worth noting here, mine operator
Martin Marietta Materials, Inc. was issued a nearly identical citation for this
violation. The citation was settled in Docket No. WEST 2019-0228. In his
settlement motion in that case, the Secretary stated that “[p]ersons were clear
of (not under) the load.” Mot. For Settlement at 3, Martin Marietta Materials
Inc. , WEST 2019-0228. The Secretary requested that the court modify
the gravity designations to reflect that injury was unlikely and that the
violation was not S&S. The court accepted the Secretary’s explanations for
the modifications and approved the settlement. Decision Approving Settlement, Martin
Marietta Materials Inc. , WEST 2019-0228. Because the representations made in
that related operator case differ from the Secretary’s position in the present
case, the Court instructed the parties to address whether the doctrine of
judicial estoppel affects this proceeding. [7]
Unpublished Order dated Nov. 12, 2019. After briefing the issue of judicial
estoppel, the Secretary affirmatively chose not to brief how this violation was
S&S or highly likely to result in a fatality. Sec’y Br. at 5–6. Without
invoking judicial estoppel, I find that the settlement reached in WEST
2019-0228 nevertheless lends notable support to the notion that this violation
was unlikely to result in injury and was not S&S.

Because injury was unlikely, the
third factor of the Mathies test is not met. I find that the this violation
was unlikely to result in injury, that the injury could reasonably be expected
to be fatal, that two people were affected, and that the violation was not
S&S.

Negligence

Under the Mine Act, operators are
held to a high standard of care, and “must be on the alert for conditions and
practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30
C.F.R. § 100.3(d). MSHA’s regulations define reckless disregard as conduct
which exhibits the absence of the slightest degree of care, high negligence as
actual or constructive knowledge of the violative condition without mitigating
circumstances; moderate negligence as actual or constructive knowledge of the
violative condition with mitigating circumstances; and low negligence as actual
or constructive knowledge of the violative condition with considerable
mitigating circumstances. 30 C.F.R. § 100.3: Table X.

Inspector Hakala designated the
citation as high negligence, explaining at hearing that McPartland, as the
“individual in charge, had direct knowledge and he was involved in the imminent
danger and the violation itself.” Tr. 35. I find that the Secretary failed to
credibly establish that McPartland was in charge. McPartland credibly testified
that he did not have any supervisory responsibility. Tr. 96.

I find that Bragg’s negligence is
low. McPartland should not have entered the fall zone, but based on the
testimony and evidence presented in this case, it is clear to me that to the
extent he entered the fall zone, his presence there was momentary. Furthermore,
Bragg took comprehensive safety precautions ahead of and during the pick. For
instance, the miners involved in the job all took part in a safety meeting
prior to the pick. Tr. 100–01. In its configuration that day, the crane was
authorized to lift a load much heavier than the hopper. Ex. R–A, p. 7, see Resp.
Br. at 6–7. The rigging utilized was also rated for far more weight than was
being lifted. Resp. Br. at 7.

Given the considerable mitigating circumstances,
I reduce Bragg’s negligence from high to low.

PENALTY

It is
well established that Commission administrative law judges have the authority
to assess civil penalties de novo for violations of the Mine Act. Sellersburg
Stone Company , 5 FMSHRC 287, 291 (Mar. 1983). The Act requires that in
assessing civil monetary penalties, the Commission ALJ shall consider the six
statutory penalty criteria:

(1) the operator’s
history of previous violations, (2) the appropriateness of such penalty to the
size of the business of the operator charged, (3) whether the operator was
negligent, (4) the effect on the operator’s ability to continue in business, (5)
the gravity of the violation, and (6) the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification of a
violation.

30 U.S.C. § 820(i).

The
Secretary proposed a regularly assessed penalty of $2,615.00. Bragg has no
history of previous violations. Bragg did not present evidence regarding its
size or argue that the size of the penalty was disproportionate. Further, Bragg
did not contend at hearing or in its submissions in this case that the penalty
amount would affect the company’s ability to continue in business. As discussed
in greater detail above, I find this violation to be non-S&S and unlikely
to result in a fatal injury. I reduce Bragg’s negligence from high to low in
light of the significant mitigating circumstances. No evidence was presented on
good faith in compliance. In light of these considerations, I assess a penalty
of $200.00 .

ORDER

Respondent
is hereby ORDERED to pay the Secretary of Labor the total sum of $200.00
within 30 days of this order. [8]

/s/
David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (Email [9] )

Sonya P. Shao, U.S. Department of Labor, Office of the
Solicitor, [email protected]

Perry P. Poff, Donell, Melgoza & Scates LLP, [email protected]

[1]
In this decision, the joint stipulations, transcript, Secretary’s
exhibits, and Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex.
S–#,” and “Ex. R–#,” respectively.

[2] Kimberly Hakala has been an
MSHA inspector for nearly eight years. Tr. 12. She previously worked for
approximately 10 years in various roles at her family’s gypsum limestone
operation. Tr. 13.

[3]
This 107(a) order, Order No. 9374371, was issued to Martin Marietta, not Bragg
Crane Service. It was withdrawn by the Secretary at hearing.

[4]
Kyle McPartland has worked for Bragg as a mechanic/oiler for 11 years. Tr. 95–96.

[5]
Zachary Cramer has worked as a crane operator for Bragg since January 2016 and
has been a crane operator since August 2015. Tr. 156–58. Prior to becoming a
crane operator, he worked as a certified rigger and signalman for three years. Tr.
160.

[6]
Dean Stone worked for Bragg Crane from 1977 to 1995 as a crane operator. Tr.

202. After a hiatus from the industry, he returned to Bragg in 2009 and has
     been a branch manager since. Tr. 203.

[7]
Discussed by the Supreme Court in New Hampshire v. Maine , the doctrine
of judicial estoppel prevents parties from taking a certain position in a legal
proceeding and then assuming a contrary position in a later proceeding. 532
U.S. 742, 749–50 (2001). Because the respondents are different in these cases,
I will not invoke the doctrine. However, I have taken judicial notice of the
representations made and settlement reached in the corresponding operator case.

[8]
Please pay penalties electronically at Pay.Gov, a service of the U.S.
Department of the Treasury, at  https://www.pay.gov/public/form/start/67564508 .
Alternatively, send payment (check or money order) to: U.S. Department of
Treasury, Mine Safety and Health Administration

P.O. Box 790390, St. Louis, MO
63179-0390. Please include Docket and A.C. Numbers. 

[9]
For the foreseeable future, Federal Mine Safety and Health Review Commission
(FMSHRC) notices, decisions, and orders will be sent only through electronic
mail. Because FMSHRC will not be monitoring incoming physical mail or faxes,
parties are encouraged to submit all filings through the agency’s electronic
filing system. If you are not able to file through our electronic filing
system, please send an email copy and we will file it for you.