“SECRETARY OF LABOR,Complainant,v.F.M.C. GOLD COMPANY, INC.,Respondent.OSHRC Docket No. 90-0328*_ORDER _*This matter is before the Commission on a Direction for Review enteredby Commissioner Edwin G. Foulke, Jr. on May 29, 1991. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. Theterms of the Stipulation and Settlement Agreement do not appear to becontrary to the Occupational Safety and Health Act and are in compliancewith the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order, and we set aside the Administrative LawJudge’s Decision and Order to the extent that it is inconsistent withthe Stipulation and Settlement Agreement. This is the final order ofthe Commission in this case. _See_ 29 U.S.C. ?? 659(c), 660(a) and (b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 20, 1991————————————————————————LYNN MARTIN, SECRETARY OF LABOR,Complainant,v.F.M.C. GOLD COMPANY, INC.,Respondent.OSHRC Docket No. 90-0328*STIPULATION AND SETTLEMENT AGREEMENT **I.*The parties have reached agreement on a full and complete settlement anddisposition of the issues in this proceeding which is currently pendingbefore the Commission.*II.*It is hereby stipulated and agreed by between the Complainant, Secretaryof Labor, and the Respondent, F.M.C. Gold Company, Inc., that:1. This case concerns a drill site near Ditch Creek in Salmon NationalForest, Idaho. Previous exploratory drilling had established thepresence of a gold deposit in the Ditch Creek area. The purpose of thedrilling at this site in 1989 by Elsing Drilling and Pump, Inc., anindependent contractor, was to extract core samples of the gold depositin the Ditch Creek area.2. The Commission has granted discretionary review, in part, concerningwhether the Administrative Law Judge erred in ruling that Respondentfailed to establish that the Ditch Creek drillsite was exempt from therequirements of the Act pursuant to Section 4(b)(1) of the OSH Act.3. After a review of the record evidence and consultation with officialsof OSHA and MSHA regarding the specific facts of this case, Complainantconcludes that the Ditch Creek drill site came under the regulatoryauthority of the Mine Safety and Health Administration and was exemptfrom the requirements of the Act pursuant to Section 4(b)(1) of the OSH Act.4. Complainant hereby withdraws with prejudice all citations issued torespondent on January 3, 1990, including Citation No. 1, Items 1 and 2,the complaint, and the notification of proposed penalty.5. The parties request that the Commission set aside the ALJ’s decisionin this case.6. Each party agrees to bear its own fees and other expenses incurred bysuch party in connection with any stage of this proceeding.7. Respondent states that there are no authorized employeerepresentatives of affected employees.8. The parties agree that this Stipulation and Settlement Agreement iseffective upon execution.9. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at its Salmon, Idaho worksite on the 10th day ofDecember, 1991, and will remain posted for a minimum period of ten (10)days. Respondent avers that its employees report to the Salmon worksiteon a regular basis.10. This Stipulation and Settlement Agreement shall not be deemed toconstitute an admission by respondent concerning any matter containedwithin the citations, notification of penalty, and the complaint, andshall not be deemed to constitute an admission by respondent of aviolation of any state or federal law or regulation.James J. Gonzales (Date) Attorney for F.M.C. Gold Company, Inc.Holland & HartOrlando Pannocchia (Date)Attorney for theSecretary of LaborU.S. Department of Labor Office of the SolicitorSECRETARY OF LABOR,Complainant,v.F.M.C. GOLD COMPANY, INC.,Respondent.OSHRC DOCKET NO. 90-0328APPEARANCES: For the Complainant:Jay A. Williamson, Esq., Office of the Solicitor,U.S. Department of Labor, Seattle, WashingtonFor the Respondent:James J. Gonzales, Esq., Holland & Hart,Denver, Colorado_DECISION AND ORDER_Loye, Judge:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. Section 651_et seq_.; hereafter called the \”Act\”).Respondent, FMC Gold Company, Inc. (FMC), is an employer with itsprinciple offices at 5011 Meadowwood Way, Reno Nevada, whose primarypurpose is the location of gold mines (Answer, ?2; Tr. 273). FMC isengaged in a business affecting commerce as it regularly uses the mailand other facilities of interstate commerce as well as goods transportedin interstate commerce to conduct its business (Request for Admissions1-3). Respondent is, therefore, an employer within the meaning of andsubject to the Act. Jurisdiction is correctly in the OccupationalSafety and Heath Review Commission under 29 U.S.C. 652(5).Following an inspection of respondent’s workplace in the Salmon NationalForest, Idaho, on November 1, 1989, by the Occupational Safety andHealth Administration (OSHA), the Secretary of Labor issued citations toFMC alleging violation of 29 CFR ??5(a)(1), 1910.1200(e)(i),1920.1200(g)(i) and 1920.1200(h). Penalties totaling $1,710.00 wereproposed. Respondent timely contested the citation.On August 6 and 7, 1990 a hearing was held in Coeur d’Alene, Idaho. Additional testimony was received on January 11, 1991 in Salt Lake City,Utah. Both parties have filed briefs, and this case is now ready fordecision._Alleged Violation_Serious citation 1, item 1 alleges:Section 5(a)(1) of the Occupational Safety and Health Act of 1970: Theemployer did not furnish employment and a place of employment which werefree from recognized hazards that were causing or likely to cause deathor serious physical harm to employees in that employees were exposed to:(a) Drill Site Located on Ditch Creek – On or about October 26, 1989,and times prior thereto, mobile equipment was not blocked and\/or thewheels turned into the bank to prevent unexpected movement on inclinedroads.Among other methods, one feasible and acceptable abatement to correctthis hazard is to block\/chock the wheels of mobile equipment.Serious citation 1, item 2 alleges:Section 5(a)(1) of the Occupational Safety and Health Act of 1970: Theemployer did not furnish employment and a place of employment which werefree from recognized hazards that were causing or likely to cause deathor serious physical harm to employees in that employees were exposed to:(a) Drill Site Located on Ditch Creek – On or about October 26, 1989,and times prior thereto, no reliable means of communication was providedfor obtaining assistance in the event of an emergency.Among other methods, one feasible and acceptable abatement method tocorrect this hazard is to install a two-way radio in all mobileequipment used on drill sites.Section 5(a)(1) of the Act provides:Sec.5.(a) Each employer–(1) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees;Serious citation 1, item 3 alleges:3AThe alleged violations below have been grouped because they involvesimilar or related hazards that may increase the potential for injuryresulting from an accident.29 CFR 1910.1200(e)(1): Employer had not developed or implemented awritten hazard communication program which describes how the criteria in29 CFR 1910.1200(f), (g) and (h) will be set:(a) F.M.C. Gold – Employees are potentially exposed to hazardouschemicals such as, but not limited to, fuels, lubricants, drilling mud,and silica.3B29 CFR 1910.1200(g)(1): Employer did not have a material safety datasheet for each hazardous chemical used in the workplace:(a) F.M.C. Gold – No material safety data sheets to cover hazardouschemicals such as, but not limited to, fuel, drill mud, and silica.3C29 CFR 1910.1200(h): Employees were not provided information andtraining as specified in 29 CFR 1910.1200(h)(1) and (2) on hazardouschemicals in their work area at the time of their initial assignment andwhenever a new hazard was introduced into their work area:(a) F.M.C. Gold – Employee(s) working in and around the drill riggs(sic) were exposed to hazardous chemicals such as, but not limited to,fuel, drill mud, silica, and lubricants.The cited standards provide:29 CFR 1910.1200(e)(1):(e) _Written hazard communication program_. (1) Employers shalldevelop, implement, and maintain at the workplace, a written hazardcommunication program for their workplaces which at least describes howthe criteria specified in paragraphs (f), (g), and (h) of this sectionfor labels and other forms of warning, material safety data sheets, andemployee information and training will be met, and which also includesthe following:29 CFR 1910.1200(g)(1):(g) _Material safety data sheets_. (1) Chemical manufacturers andimporters shall obtain or develop a material safety data sheet for eachhazardous chemical they produce or import. Employers shall have amaterial safety data sheet for each hazardous chemical which they use.ton pickup modified to carry diesel fuel, was parked approximately 20feet up the road from Elsing’s drill rig, facing downhill (Tr. 265). Schaubs and Filsinger backed the FMC truck down the road and parkedabout 12 feet above the Elsing truck (Tr. 266).Mr. Filsinger’s duties on October 26th were to assure that drill sampleswere collected properly, and to carry them back to the tailgate of theFMC truck, where Schaubs was examining the samples \”as to lithology,alteration, [and] any possible mineralization. . .,\” and logging hisobservations (Tr. 271).At about 3:52 p.m. that afternoon (Tr. 267), an Elsing employee, TracyJames, prepared to refuel the drill rig. James chocked one wheel of theElsing truck, started up the engine, and put the truck in neutral (Tr.209-210, 227, 231, 245, 324-331; Ex. R-A, R-C p. 2, 6). While James wasunstringing the hose, the Elsing truck rolled over the chocks, down thehill and pinned Brad Filsinger between itself and the drill rig. ThoughSchaubs immediately transported him to the nearest hospital, in Salmon,Filsinger’s injuries proved fatal (Tr. 289, 300)._?4(b)(1) Exemption_Respondent contends that the FMC drill site named in the citation isexempt from requirements of the Act pursuant to ?4(b)(1) of the Act. Section 4(b)(1) provides that:Nothing in this Act shall apply to working conditions of employees withrespect to which other Federal agencies. . .exercise statutory authorityto prescribe or enforce standards or regulations affecting occupationalsafety or health.In its brief respondent claims that working conditions at the FMC drillsite were governed by occupational safety and health regulationspromulgated by the Department of Transportation or, alternatively, byregulations of the Mine Safety and Health Administration. (_See also_,Tr. pp. 167, 391; FMC representatives stated that they believed that theworksite was subject to and that they had a duty to comply with MSHAregulations).In order to establish a section 4(b)(1) exemption, it must be shown thatan agency other than OSHA has the statutory authority to regulate thehealth and safety of certain workers, and that the other agencyexercised its statutory authority in such manner as to exempt the citedworking conditions. _Northwest Airlines, Inc._, 8 BNA OSHC 1982 (No.13649, 1980). The burden of proving that another agency has soexercised its authority is on the employer claiming the ?4(b)(1)exemption. _Idaho Travertine Corp._, 3 BNA OSHC 1535 (No. 1134, 1975);_Crescent Wharf & Warehouse Co._, 2 BNA OSHC 1623 (No. 1672, 1975).Respondent introduced no evidence on the exemption issue, but cites 49CFR ?392.20 of the Federal Motor Carrier Safety Regulations, and varioussections of CFR Title 30, regulations of the Federal Mine Safety andHealth Administration (MSHA).49 CFR ?392.20 establishes safety regulations of general applicabilityfor commercial motor vehicles and employees involved in the operation ofsame. Commercial motor vehicles are defined at ?390.5.Commercial motor vehicle means any self-propelled or towed vehicle usedon public highways in interstate commerce to transport passengers orproperty when: (a) The vehicle has a gross vehicle weight rating orgross combination weight rating of 10,001 or more pounds; or (b) Thevehicle is designed to transport more than 15 passengers, including thedriver; or (c) The vehicle is used in the transportation of hazardousmaterials in a quantity requiring placarding under regulation issued bythe Secretary under the Hazardous Materials Transportation Act (49U.S.C. App. 1801-1813).It is clear from the evidence in the record that neither the FMC nor theElsing truck is a commercial motor vehicle as defined by 49 CFR?390.5(a) or (b). Moreover, respondent failed to demonstrate that thequantities of diesel fuel transported by the Elsing vehicle brought itunder the placarding requirements of the Hazardous MaterialsTransportation Act.Respondent has failed to show that the Federal Motor Carrier SafetyRegulations are applicable to the vehicles at issue or that they exemptrespondent from coverage under the Act.Title 30 CFR ?56 _et seq._ sets forth \”mandatory safety and healthstandards for each surface metal or nonmetal mine, including open pitmines, subject to the Federal Mine Safety and Health Act of 1977.\” 30CFR ?57 regulates underground metal or nonmetal mines. The term \”mine\”is not defined for the purposes of ?? 56 and 57; however, Mr. LarryWeberg, a Supervisory Inspector with MSHA (Tr. 61), testified that MSHAdoes not exercise any authority over exploratory drilling prior to thedevelopment of an area for the commercial extraction of minerals (Tr.62-63, 81-82). Specifically, Weberg stated that MSHA standards wereinapplicable to FMC’s drill site at Ditch Creek in the Salmon NationalForest (Tr. 67).The evidence clearly establishes that the Ditch Creek site was anexploratory drill site. Larry Weberg testified, without contradiction,that MSHA exercises no authority over exploration. Respondent has not,therefore, shown that its Ditch Creek operations were exempt from OSHAregulation under ?4(a)(1) of the Act.[[2]]_Alleged Violation of ?5(a)(1)Serious Citation 1, item 1_It is uncontested that on October 26, upon Schaubs’ and Filsinger’sarrival at the drill site, the Elsing and FMC trucks were parked in gearwith their emergency brakes on, but the wheels were neither chocked norturned into the bank (Tr. 248, 266-267, 268- 269, 317-318). Schaubstestified that he was not aware of any instances of a truck in gear withits brakes engaged rolling out of a parked position, and was unaware ofany hazardous condition on the site (Tr. 320).OSHA Compliance Officer Jack Heier testified, based on his pastinspections of mining and logging companies, that it is standardpractice within those industries, while working in national forestIands, to permanently mount chocks on their vehicles for use whenparking on grades. In addition vehicle wheels are turned into thehillside (Tr. 118, 121-123).[[3]]Mine Safety and Health regulations, specifically 30 CFR ?56.14207require the chocking or turning of wheels:Mobile equipment shall not be left unattended unless the controls areplaced in the park position and the parking brake, if provided, is set. When parked on a grade, the wheels or tracks of mobile equipment shallbe either chocked or turned into a bank.MSHA Inspector Weberg testified that ?56.14207 was applicable to anyunattended motor vehicle parked on a grade if, when taken out of gearwith the emergency brake off, the vehicle started to roll of its ownweight (Tr. 79-80). A vehicle is unattended unless there is anoperator in the cab of the vehicle (Tr. 81). Weberg stated that thestandard assumes the failure of the brake and gear mechanism and isintended to protect from mechanical failure (Tr. 82)._Discussion_The Commission has held that:To prove that an employer violated section 5(a)(1), the Act’s generalduty clause, the Secretary must prove that the cited employer failed tofree the workplace of a hazard that was recognized by the cited employeror its industry, that was causing or likely to cause death or seriousphysical harm, and that could have been materially reduced or eliminatedby a feasible and useful means of abatement._Pelron Corporation_, 12 BNA OSHC 1833, 1835 (No. 82-388, 1986).The Commission has held that a recognized hazard is a practice,procedure or condition under the employers’ control that is generallyknown to be hazardous in the industry. \”Thus, whether or not a hazardis ‘recognized’ is a matter for objective determination. It does notdepend on whether the particular employer appreciated the nature of thehazard.\” _Georgia Electric Co._, 5 BNA OSHC 1112, 1115, 1116 (No. 9339,1977).The feasibility of the Secretary’s suggested abatement depends onwhether such precautions are recognized by \”knowledgeable personsfamiliar with the industry as necessary and valuable steps for a soundsafety program in the particular circumstances existing at theemployer’s worksite.\” _Cerro Metal Products Division, Marmon Group,Inc_. 12 BNA OSHC 1821, 1822, 1823 (No. 78-5159, 1986).The evidence establishes both that the mining industry recognizes thehazard of being struck by a driverless vehicle rolling down an inclineand that chocking or turning the wheels of a vehicle are consideredappropriate methods of abatement. This Judge finds that respondent’sexploration activities, though not directly subject to MSHA regulation,are sufficiently related to the mining industry that knowledge ofhazards recognized by MSHA is imputable to FMC. Respondent’s argumentthat it believed its operations to have been covered by MSHA regulationswhile simultaneously claiming to have been ignorant of the requirementsof those regulations is especially disingenuous. Every employer has aduty to inform itself of regulations affecting its operation. FMCtherefore should have been aware of the MSHA regulation requiring theblocking or turning of wheels into a bank.The accident which occurred on October 26 amply demonstrates that beingstruck by a driverless vehicle may result in death or serious bodily harm.Complainant has demonstrated that FMC, in failing to chock or turn thewheels of its vehicle into the bank, was in violation of ?5(a)(1) of theAct. As the violation has been established, this Judge need not anddoes not consider whether FMC had an additional duty to assure that itscontractor, Elsing Drilling and Pump, had freed its workplace of thosesame hazards._Alleged Violation of ?5(a)(1)Serious Citation 1, item 2_It is also uncontested that there was no radio, telephone or othertwo-way emergency communication system at the Ditch Creek drill site(Tr. 291, 297). Respondent acknowledges that it was a 15 to 20 minutedrive to the nearest two-way communication (Tr. 202-203). Schaubs andFilsinger had a telephone at their trailer office in North Fork aboutseven miles from the drill site (Tr. 297, 300). There was also two-wayradio communication available at the North Fork Ranger station, eightmiles from the Ditch Creek site (Tr. 53-54).Compliance Officer Heier testified that it is standard practice withinthe mining or logging industries operating out of the national foreststo establish two-way communications by mobile radio to contact theoutside in the event of an emergency (Tr. 123; _See also_, Schaubs’testimony regarding Meridian Gold’s two-way communication system, Tr.291-293). CO Heier stated that a radio is essential to avoid delays inobtaining assistance. There may be no vehicle operational fortransporting an injured party, or the injury may prevent a victim frombeing moved (Tr. 247).MSHA inspector Weberg testified that MSHA requires that suitablecommunication systems be established at mine sites (Tr. 65). 30 CFR?56.18013 provides that \”[a] suitable communication system shall beprovided at the mine to obtain assistance in the event of an emergency.\”Respondent’s own Safety and Health Program provides for mobile radiotelephones so that \”[a]ll field crews can be in constant communicationwith each other for routine activities and more important, if anemergency arises, help can be summoned\” (Tr. Ex. C-14, p. 337). FMCoriginally made radio telephones available on its project sites, from1985 through 1987, but found that with that system they were unable totransmit out of the line of sight (Tr. 298-299, 341, 348-349). Radioswere then provided only on an employee’s request (Tr. 349-350). FMClooked into the use of back-country radios but decided that \”because ofthe cost involved and because of the personal pressures of one of ourcorporate officers that we were not going to use that particular type ofa system because we didn’t want a bay station\” (Tr. 351-352).Mr. Joseph Syczylo testified that he sells, installs and servicestwo-way back-country radios in the Salmon National Forest area (Tr.41-42). Mr. Syczylo stated that radios on a high frequency single sideband, at 4.6375 megahertz, with a peak envelope power from 110 to 150watts, have been in use in the North Fork Ranger District forapproximately 25 years (Tr. 43-44). The cost of a radio unit andantenna is between $1,700.00 and $2,500.00 (Tr. 48). A mobile unit witha CB antenna normally has a range of from 50 to 75 miles in canyonconditions (Tr. 45). In Salmon, Idaho, approximately 30 miles from theDitch Creek site, Wilderness Air, a back-country radio service, monitorsradio bands, takes messages and acts as a relay station for remoteranches, outfitters and guides from 6:00 a.m. to 6:00 or 7:00 p.m.daily. For a charge of $45.00 per month any party can contract withWilderness Air to provide radio services on one of their approximately40 licensed bands (Tr. 46-48). Syczylo testified that back-countryradios transmitting from the North Fork Ranger District are in excess of90% effective in attempted communications with Salmon, Idaho (Tr. II,p.104).[[4]]_Discussion_The evidence establishes not only that the mining industry, but FMCitself recognized that the lack of two-way communication from a remoteworksite is hazardous. The Ditch Creek site was remote, 15 to 20 minutesfrom the nearest phone, and the inability to contact outside help fromthe site could have resulted in the delayed treatment or the aggravationof serious injury.This Judge finds that back-country radio service was known of andavailable to FMC. FMC’s desire not to use a bay station is insufficientto relieve it of its duty to provide working two-way communication toits employees. Moreover, making radio phones, which had already provedinadequate, available to employees on an \”as requested\” basis isinsufficient to fulfill that duty.Complainant has shown a violation of ?5(a)(1)._PENALTIES_The Secretary has proposed penalties of $720.00 for each ?5(a)(1)violation. FMC is a large company (Tr. 354). The Secretary introduced noevidence of prior violations. The existence of specific MSHA standardswhich governed the cited hazards, and which FMC believed were applicableto its operations, militates against any reduction for good faith. Thegravity of the violations is high, both FMC employees on the site wereexposed to hazards which could have caused or aggravated serious bodilyharm. The proposed penalties are deemed appropriate, and $720.00 willbe assessed for each violation._Alleged Violations of ?1910.1200 et. seq._In its drilling operation, Elsing made use of diesel fuel (Tr. 265),lubricating oils (Ex. C-3, p. 223), and ether (Tr. 247). Respondentadmits that FMC had no written hazard communication program at the drillsite on October 26, 1989 (Tr. 286-287).The Hazard Communication Standard at ? 1910.1200 _et seq._ requiresemployers to provide information to their employees about hazardouschemicals known to be present in the workplace in such a manner thatemployees may be exposed under normal conditions of use or in aforeseeable emergency. This Judge does not believe, however, that thestandard requires the employer to anticipate the use of hazardouschemicals by other employers at remote multi-employer worksites, or toinstitute a written hazard communication program addressing hazards towhich their own employees might be incidentally exposed when visiting orconducting separate duties at the worksites of other employers.Section 1910.1200 (e)(2) specifically addresses the multi-employerworksite and provides:(2) _Multi-employer workplaces_. Employers who produce, use, or storehazardous chemicals at a workplace in such a way that the employees ofother employer(s) may be exposed (for example, employees of aconstruction contractor working on-site) shall additionally ensure thatthe hazard communication programs developed and implemented under thisparagraph (e) include the following:(i) The methods the employer will use to provide the other employer(s)with a copy of the material safety data sheet, or to make it availableat a central location in the workplace, for each hazardous chemical theother employer(s)’ employees may be exposed to while working;(ii) The methods the employer will use to inform the other employer(s)of any precautionary measures that need to be taken to protect employeesduring the workplace’s normal operating conditions and in foreseeableemergencies; and,(iii) The methods the employer will use to inform the other employer(s)of the labeling system used in the workplace.(3) The employer may rely on an existing hazard communication program tocomply with these requirements, provided that it meets the criteriaestablished in this paragraph (e).It is undisputed that the hazardous chemicals on the Ditch Creek drillsite were provided by and used in Elsing’s operations and not those ofFMC. Under ?1910.1200(e)(2) Respondent was entitled to rely onElsing’s hazard communication program to provide material safety datasheets and to apprise FMC employees of any precautionary measures thatneeded to be taken with regard to chemicals in use by Elsing.Complainant has failed to show that FMC was in violation of ? 1910.1200et seq. on October 26, 1989. Serious citation 1, item 3 will,therefore, be dismissed in its entirety._Findings of Fact and Conclusions of Law_All findings of fact and conclusions of law relevant and necessary to adetermination of the contested issues have been found specially andappear in the decision above. See Rule 52(a) of the Federal Rules ofCivil Procedure. Proposed Findings of Fact or Conclusions of Law thatare inconsistent with this decision are denied._ORDER_1. Serious citation 1, item 1, alleging violation of ?5(a)(1) of the Actis AFFIRMED, and a penalty of $720.00 is ASSESSED.2. Serious citation 1, item 2, alleging violation of ?5(a)(1) of the Actis AFFIRMED, and a penalty of $720.00 is ASSESSED.3. Serious citation 1, items 3A, 3B, and 3C, alleging violations of??1910.1200(e)(1), (g)(1) and (h), respectively, are VACATED.Benjamin R. LoyeJudge, OSHRCDated: April 19, 1991FOOTNOTES:[[2]] In its brief respondent also argues that ?5(a)(1) is preempted byspecific OSHA regulations. That issue was disposed of by motion at thehearing and will not be discussed here (Tr. 6). Respondent’s dueprocess argument is also found to be without merit.[[3]] Complainant introduced the U.S. Army Corps of Engineers’ Safetyand Health Requirements Manual and the U.S. Department of the InteriorBureau of Reclamation’s Construction Safety Standards to show industryrecognition of the cited hazard (Ex. C-4, C-5). According to CO Heier,the U.S. Army Corps of Engineers in Idaho is involved in surfaceconstruction on military installations (Tr. 126). The Bureau ofReclamation is involved with dam reconstruction (Tr. 132). It is theopinion of this Judge that those activities are not sufficiently relatedto the mining and exploration industries that the standard practices ofthe agencies involved constitute evidence of hazard recognitionimputable to FMC.[[4]] Joseph Syczylo’s testimony, based on practical experience with aworking system, is credited over that of respondent’s witness FrankWozniak, who testified that communications via high frequency radios areineffective because they are susceptible to skip zones and shadow losses(Tr. II, pp. 18, 21-26, 30-32).”