“Docket No. 90-0328 SECRETARY OF LABOR, Complainant, v. F.M.C. GOLD COMPANY, INC., Respondent.OSHRC Docket No. 90-0328ORDER This matter is before the Commission on aDirection for Review entered by Commissioner Edwin G. Foulke, Jr. on May 29, 1991.\u00a0The parties have now filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon therepresentations appearing in the Stipulation and Settlement Agreement, we conclude thatthis case raises no matters warranting further review by the Commission.\u00a0 The termsof the Stipulation and Settlement Agreement do not appear to be contrary to theOccupational Safety and Health Act and are in compliance with the Commission’s Rules ofProcedure.Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement intothis order, and we set aside the Administrative Law Judge’s Decision and Order to theextent that it is inconsistent with the Stipulation and Settlement Agreement.\u00a0 Thisis the final order of the Commission in this case.\u00a0 See 29 U.S.C. ?? 659(c),660(a) and (b).Edwin G. Foulke, Jr.ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: December 20, 1991LYNN MARTIN, SECRETARY OF LABOR, Complainant, v. F.M.C. GOLD COMPANY, INC., Respondent.OSHRC Docket No. 90-0328STIPULATION AND SETTLEMENT AGREEMENT I.The parties have reached agreement on a full andcomplete settlement and disposition of the issues in this proceeding which is currentlypending before the Commission.II.It is hereby stipulated and agreed by betweenthe Complainant, Secretary of Labor, and the Respondent, F.M.C. Gold Company, Inc., that:1. This case concerns a drill site near DitchCreek in Salmon National Forest, Idaho.\u00a0 Previous exploratory drilling hadestablished the presence of a gold deposit in the Ditch Creek area.\u00a0 The purpose ofthe drilling at this site in 1989 by Elsing Drilling and Pump, Inc., an independentcontractor, was to extract core samples of the gold deposit in the Ditch Creek area.2. The Commission has granted discretionary review, in part, concerning whether theAdministrative Law Judge erred in ruling that Respondent failed to establish that theDitch Creek drillsite was exempt from the requirements of the Act pursuant to Section4(b)(1) of the OSH Act.3. After a review of the record evidence and consultation with officials of OSHA and MSHAregarding the specific facts of this case, Complainant concludes that the Ditch Creekdrill site came under the regulatory authority of the Mine Safety and HealthAdministration and was exempt from the requirements of the Act pursuant to Section 4(b)(1)of the OSH Act.4. Complainant hereby withdraws with prejudiceall citations issued to respondent on January 3, 1990, including Citation No. 1, Items 1and 2, the complaint, and the notification of proposed penalty.5. The parties request that the Commission setaside the ALJ’s decision in this case.6. Each party agrees to bear its own fees andother expenses incurred by such party in connection with any stage of this proceeding.7. Respondent states that there are noauthorized employee representatives of affected employees.8. The parties agree that this Stipulation andSettlement Agreement is effective upon execution.9. Respondent certifies that a copy of this Stipulation and Settlement Agreement wasposted at its Salmon, Idaho worksite on the 10th day of December, 1991, and will remainposted for a minimum period of ten (10) days. Respondent avers that its employees reportto the Salmon worksite on a regular basis.10. This Stipulation and Settlement Agreementshall not be deemed to constitute an admission by respondent concerning any mattercontained within the citations, notification of penalty, and the complaint, and shall notbe deemed to constitute an admission by respondent of a violation of any state or federallaw or regulation.James J. Gonzales (Date) Attorney for F.M.C.Gold Company, Inc.Holland & HartOrlando Pannocchia (Date) Attorney for theSecretary of Labor U.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 theSolicitor, U.S. Department of Labor, Seattle, Washington For the Respondent:James J. Gonzales, Esq., Holland & Hart, Denver, ColoradoDECISION AND ORDER Loye, Judge:This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.Section 651 et seq.; hereafter called the \”Act\”).Respondent, FMC Gold Company, Inc. (FMC), is anemployer with its principle offices at 5011 Meadowwood Way, Reno Nevada, whose primarypurpose is the location of gold mines (Answer, ?2; Tr. 273).\u00a0 FMC is engaged in abusiness affecting commerce as it regularly uses the mail and other facilities ofinterstate commerce as well as goods transported in interstate commerce to conduct itsbusiness (Request for Admissions 1-3).\u00a0 Respondent is, therefore, an employer withinthe meaning of and subject to the Act.\u00a0 Jurisdiction is correctly in the OccupationalSafety and Heath Review Commission under 29 U.S.C. 652(5).Following an inspection of respondent’sworkplace in the Salmon National Forest, Idaho, on November 1, 1989, by the OccupationalSafety and Health Administration (OSHA), the Secretary of Labor issued citations to FMCalleging violation of 29 CFR ??5(a)(1), 1910.1200(e)(i), 1920.1200(g)(i) and1920.1200(h).\u00a0 Penalties totaling $1,710.00 were proposed.\u00a0 Respondent timelycontested the citation.On August 6 and 7, 1990 a hearing was held inCoeur d’Alene, Idaho.\u00a0 Additional testimony was received on January 11, 1991 in SaltLake City, Utah.\u00a0 Both parties have filed briefs, and this case is now ready fordecision.Alleged ViolationSerious citation 1, item 1 alleges:Section 5(a)(1) of the Occupational Safety andHealth Act of 1970:\u00a0 The employer did not furnish employment and a place ofemployment which were free from recognized hazards that were causing or likely to causedeath or serious physical harm to employees in that employees were exposed to:(a) Drill Site Located on Ditch Creek – On orabout October 26, 1989, and times prior thereto, mobile equipment was not blocked and\/orthe wheels turned into the bank to prevent unexpected movement on inclined roads.Among other methods, one feasible and acceptable abatement to correct this hazard is toblock\/chock the wheels of mobile equipment.Serious citation 1, item 2 alleges:Section 5(a)(1) of the Occupational Safety andHealth Act of 1970:\u00a0 The employer did not furnish employment and a place ofemployment which were free from recognized hazards that were causing or likely to causedeath or serious physical harm to employees in that employees were exposed to:(a) Drill Site Located on Ditch Creek – On orabout October 26, 1989, and times prior thereto, no reliable means of communication wasprovided for obtaining assistance in the event of an emergency.Among other methods, one feasible and acceptableabatement method to correct 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 of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees; Serious citation 1, item 3 alleges:3A The alleged violations below have been grouped because they involve similar or relatedhazards that may increase the potential for injury resulting from an accident.29 CFR 1910.1200(e)(1):\u00a0 Employer had notdeveloped or implemented a written hazard communication program which describes how thecriteria in 29 CFR 1910.1200(f), (g) and (h) will be set:(a) F.M.C. Gold – Employees are potentiallyexposed to hazardous chemicals such as, but not limited to, fuels, lubricants, drillingmud, and silica.3B29 CFR 1910.1200(g)(1):\u00a0 Employer did not have a material safety data sheet for eachhazardous chemical used in the workplace:(a) F.M.C. Gold – No material safety data sheetsto cover hazardous chemicals such as, but not limited to, fuel, drill mud, and silica.3C 29 CFR 1910.1200(h):\u00a0 Employees were notprovided information and training as specified in 29 CFR 1910.1200(h)(1) and (2) onhazardous chemicals 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 andaround the drill riggs (sic) were exposed to hazardous chemicals such as, but not limitedto, fuel, drill mud, silica, and lubricants.The cited standards provide:29 CFR 1910.1200(e)(1):(e) Written hazard communication program.\u00a0(1) Employers shall develop, implement, and maintain at the workplace, a written hazardcommunication program for their workplaces which at least describes how the criteriaspecified in paragraphs (f), (g), and (h) of this section for labels and other forms ofwarning, material safety data sheets, and employee information and training will be met,and which also includes the following:29 CFR 1910.1200(g)(1):(g) Material safety data sheets.\u00a0(1) Chemical manufacturers and importers shall obtain or develop a material safety datasheet for each hazardous chemical they produce or import.\u00a0 Employers shall have amaterial safety data sheet for each hazardous chemical which they use.ton pickup modified to carry diesel fuel, was parked approximately 20 feet up the roadfrom Elsing’s drill rig, facing downhill (Tr. 265).\u00a0 Schaubs and Filsinger backed theFMC truck down the road and parked about 12 feet above the Elsing truck (Tr. 266).Mr. Filsinger’s duties on October 26th were toassure that drill samples were collected properly, and to carry them back to the tailgateof the FMC truck, where Schaubs was examining the samples \”as to lithology,alteration, [and] any possible mineralization. . .,\” and logging his observations(Tr. 271).At about 3:52 p.m. that afternoon (Tr. 267), anElsing employee, Tracy James, prepared to refuel the drill rig.\u00a0 James chocked onewheel of the Elsing 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).\u00a0 While James was unstringingthe hose, the Elsing truck rolled over the chocks, down the hill and pinned Brad Filsingerbetween itself and the drill rig.\u00a0 Though Schaubs immediately transported him to thenearest hospital, in Salmon, Filsinger’s injuries proved fatal (Tr. 289, 300).?4(b)(1) ExemptionRespondent contends that the FMC drill sitenamed in the citation is exempt from requirements of the Act pursuant to ?4(b)(1) of theAct. \u00a0 Section 4(b)(1) provides that:Nothing in this Act shall apply to workingconditions of employees with respect to which other Federal agencies. . .exercisestatutory authority to prescribe or enforce standards or regulations affectingoccupational safety or health.In its brief respondent claims that working conditions at the FMC drill site were governedby occupational safety and health regulations promulgated by the Department ofTransportation or, alternatively, by regulations of the Mine Safety and HealthAdministration.\u00a0 (See also, Tr. pp. 167, 391; FMC representatives stated thatthey believed that the worksite was subject to and that they had a duty to comply withMSHA regulations).In order to establish a section 4(b)(1)exemption, it must be shown that an agency other than OSHA has the statutory authority toregulate the health and safety of certain workers, and that the other agency exercised itsstatutory authority in such manner as to exempt the cited working conditions.\u00a0 NorthwestAirlines, Inc., 8 BNA OSHC 1982 (No. 13649, 1980).\u00a0 The burden of proving thatanother agency has so exercised its authority is on the employer claiming the ?4(b)(1)exemption.\u00a0 Idaho Travertine Corp., 3 BNA OSHC 1535 (No. 1134, 1975); CrescentWharf & Warehouse Co., 2 BNA OSHC 1623 (No. 1672, 1975).Respondent introduced no evidence on theexemption issue, but cites 49 CFR ?392.20 of the Federal Motor Carrier SafetyRegulations, and various sections of CFR Title 30, regulations of the Federal Mine Safetyand Health Administration (MSHA).49 CFR ?392.20 establishes safety regulationsof general applicability for commercial motor vehicles and employees involved in theoperation of same.\u00a0 Commercial motor vehicles are defined at ?390.5.Commercial motor vehicle means anyself-propelled or towed vehicle used on public highways in interstate commerce totransport passengers or property when:\u00a0 (a) The vehicle has a gross vehicle weightrating or gross combination weight rating of 10,001 or more pounds; or (b) The vehicle isdesigned to transport more than 15 passengers, including the driver; or (c) The vehicle isused in the transportation of hazardous materials in a quantity requiring placarding underregulation issued by the Secretary under the Hazardous Materials Transportation Act (49U.S.C. App. 1801-1813).It is clear from the evidence in the record thatneither the FMC nor the Elsing truck is a commercial motor vehicle as defined by 49 CFR?390.5(a) or (b).\u00a0 Moreover, respondent failed to demonstrate that the quantities ofdiesel fuel transported by the Elsing vehicle brought it under the placarding requirementsof the Hazardous Materials Transportation Act.Respondent has failed to show that the FederalMotor Carrier Safety Regulations are applicable to the vehicles at issue or that theyexempt respondent from coverage under the Act.Title 30 CFR ?56 et seq. sets forth\”mandatory safety and health standards for each surface metal or nonmetal mine,including open pit mines, subject to the Federal Mine Safety and Health Act of1977.\”\u00a0 30 CFR ?57 regulates underground metal or nonmetal mines.\u00a0 Theterm \”mine\” is not defined for the purposes of ?? 56 and 57; however, Mr.Larry Weberg, a Supervisory Inspector with MSHA (Tr. 61), testified that MSHA does notexercise any authority over exploratory drilling prior to the development of an area forthe commercial extraction of minerals (Tr. 62-63, 81-82). Specifically, Weberg stated thatMSHA standards were inapplicable to FMC’s drill site at Ditch Creek in the Salmon NationalForest (Tr. 67).The evidence clearly establishes that the DitchCreek site was an exploratory drill site.\u00a0 Larry Weberg testified, withoutcontradiction, that MSHA exercises no authority over exploration.\u00a0 Respondent hasnot, therefore, shown that its Ditch Creek operations were exempt from OSHA regulationunder ?4(a)(1) of the Act.[[2]]Alleged Violation of ?5(a)(1) Serious Citation 1, item 1It is uncontested that on October 26, uponSchaubs’ and Filsinger’s arrival at the drill site, the Elsing and FMC trucks were parkedin gear with their emergency brakes on, but the wheels were neither chocked nor turnedinto the bank (Tr. 248, 266-267, 268- 269, 317-318).\u00a0 Schaubs testified that he wasnot aware of any instances of a truck in gear with its brakes engaged rolling out of aparked position, and was unaware of any hazardous condition on the site (Tr. 320).OSHA Compliance Officer Jack Heier testified,based on his past inspections of mining and logging companies, that it is standardpractice within those industries, while working in national forest Iands, to permanentlymount chocks on their vehicles for use when parking on grades.\u00a0 In addition vehiclewheels are turned into the hillside (Tr. 118, 121-123).[[3]]Mine Safety and Health regulations, specifically 30 CFR ?56.14207 require the chocking orturning of wheels:Mobile equipment shall not be left unattendedunless the controls are placed in the park position and the parking brake, if provided, isset. \u00a0 When parked on a grade, the wheels or tracks of mobile equipment shall beeither chocked or turned into a bank.MSHA Inspector Weberg testified that ?56.14207was applicable to any unattended motor vehicle parked on a grade if, when taken out ofgear with the emergency brake off, the vehicle started to roll of its own weight (Tr.79-80). \u00a0 A vehicle is unattended unless there is an operator in the cab of thevehicle (Tr. 81).\u00a0 Weberg stated that the standard assumes the failure of the brakeand gear mechanism and is intended to protect from mechanical failure (Tr. 82).DiscussionThe Commission has held that:To prove that an employer violated section5(a)(1), the Act’s general duty clause, the Secretary must prove that the cited employerfailed to free the workplace of a hazard that was recognized by the cited employer or itsindustry, that was causing or likely to cause death or serious physical harm, and thatcould have been materially reduced or eliminated by a feasible and useful means ofabatement.Pelron Corporation, 12 BNA OSHC 1833,1835 (No. 82-388, 1986). The Commission has held that a recognized hazard is a practice, procedure or conditionunder the employers’ control that is generally known to be hazardous in the industry.\u00a0 \”Thus, whether or not a hazard is ‘recognized’ is a matter for objectivedetermination. It does not depend on whether the particular employer appreciated thenature of the hazard.\”\u00a0 Georgia Electric Co., 5 BNA OSHC 1112, 1115, 1116(No. 9339, 1977).The feasibility of the Secretary’s suggestedabatement depends on whether such precautions are recognized by \”knowledgeablepersons familiar with the industry as necessary and valuable steps for a sound safetyprogram in the particular circumstances existing at the employer’s worksite.\”\u00a0 CerroMetal Products Division, Marmon Group, Inc. 12 BNA OSHC 1821, 1822, 1823 (No. 78-5159,1986).The evidence establishes both that the miningindustry recognizes the hazard of being struck by a driverless vehicle rolling down anincline and that chocking or turning the wheels of a vehicle are considered appropriatemethods of abatement.\u00a0 This Judge finds that respondent’s exploration activities,though not directly subject to MSHA regulation, are sufficiently related to the miningindustry that knowledge of hazards recognized by MSHA is imputable to FMC. Respondent’sargument that it believed its operations to have been covered by MSHA regulations whilesimultaneously claiming to have been ignorant of the requirements of those regulations isespecially disingenuous.\u00a0 Every employer has a duty to inform itself of regulationsaffecting its operation.\u00a0 FMC therefore should have been aware of the MSHA regulationrequiring the blocking or turning of wheels into a bank.The accident which occurred on October 26 amplydemonstrates that being struck by a driverless vehicle may result in death or seriousbodily harm.Complainant has demonstrated that FMC, infailing to chock or turn the wheels of its vehicle into the bank, was in violation of?5(a)(1) of the Act. \u00a0 As the violation has been established, this Judge need notand does not consider whether FMC had an additional duty to assure that its contractor,Elsing Drilling and Pump, had freed its workplace of those same hazards.Alleged Violation of ?5(a)(1)Serious Citation 1, item 2It is also uncontested that there was no radio,telephone or other two-way emergency communication system at the Ditch Creek drill site(Tr. 291, 297).\u00a0 Respondent acknowledges that it was a 15 to 20 minute drive to thenearest two-way communication (Tr. 202-203).\u00a0 Schaubs and Filsinger had a telephoneat their trailer office in North Fork about seven miles from the drill site (Tr. 297,300). \u00a0 There was also two-way radio communication available at the North Fork Rangerstation, eight miles from the Ditch Creek site (Tr. 53-54).Compliance Officer Heier testified that it isstandard practice within the mining or logging industries operating out of the nationalforests to establish two-way communications by mobile radio to contact the outside in theevent of an emergency (Tr. 123; See also, Schaubs’ testimony regarding MeridianGold’s two-way communication system, Tr. 291-293).\u00a0 CO Heier stated that a radio isessential to avoid delays in obtaining assistance.\u00a0 There may be no vehicleoperational for transporting an injured party, or the injury may prevent a victim frombeing moved (Tr. 247).MSHA inspector Weberg testified that MSHArequires that suitable communication systems be established at mine sites (Tr. 65).\u00a030 CFR ?56.18013 provides that \”[a] suitable communication system shall be providedat the mine to obtain assistance in the event of an emergency.\”Respondent’s own Safety and Health Programprovides for mobile radio telephones so that \”[a]ll field crews can be in constantcommunication with each other for routine activities and more important, if an emergencyarises, help can be summoned\” (Tr. Ex. C-14, p. 337).\u00a0 FMC originally made radiotelephones available on its project sites, from 1985 through 1987, but found that withthat system they were unable to transmit out of the line of sight (Tr. 298-299, 341,348-349). \u00a0 Radios were then provided only on an employee’s request (Tr.349-350).\u00a0 FMC looked into the use of back-country radios but decided that\”because of the cost involved and because of the personal pressures of one of ourcorporate officers that we were not going to use that particular type of a system becausewe didn’t want a bay station\” (Tr. 351-352).Mr. Joseph Syczylo testified that he sells,installs and services two-way back-country radios in the Salmon National Forest area (Tr.41-42). \u00a0 Mr. Syczylo stated that radios on a high frequency single side band, at4.6375 megahertz, with a peak envelope power from 110 to 150 watts, have been in use inthe North Fork Ranger District for approximately 25 years (Tr. 43-44).\u00a0 The cost of aradio unit and antenna is between $1,700.00 and $2,500.00 (Tr. 48). A mobile unit with aCB antenna normally has a range of from 50 to 75 miles in canyon conditions (Tr. 45).\u00a0 In Salmon, Idaho, approximately 30 miles from the Ditch Creek site, Wilderness Air,a back-country radio service, monitors radio bands, takes messages and acts as a relaystation for remote ranches, outfitters and guides from 6:00 a.m. to 6:00 or 7:00 p.m.daily.\u00a0 For a charge of $45.00 per month any party can contract with Wilderness Airto provide radio services on one of their approximately 40 licensed bands (Tr. 46-48).\u00a0 Syczylo testified that back-country radios transmitting from the North Fork RangerDistrict are in excess of 90% effective in attempted communications with Salmon, Idaho(Tr. II, p.104).[[4]]DiscussionThe evidence establishes not only that themining industry, but FMC itself recognized that the lack of two-way communication from aremote worksite is hazardous. The Ditch Creek site was remote, 15 to 20 minutes from thenearest phone, and the inability to contact outside help from the site could have resultedin the delayed treatment or the aggravation of serious injury.This Judge finds that back-country radio servicewas known of and available to FMC. FMC’s desire not to use a bay station is insufficientto relieve it of its duty to provide working two-way communication to its employees.Moreover, making radio phones, which had already proved inadequate, available to employeeson an \”as requested\” basis is insufficient 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 alarge company (Tr. 354). The Secretary introduced no evidence of prior violations. Theexistence of specific MSHA standards which governed the cited hazards, and which FMCbelieved were applicable to its operations, militates against any reduction for goodfaith. The gravity of the violations is high, both FMC employees on the site were exposedto hazards which could have caused or aggravated serious bodily harm.\u00a0 The proposedpenalties are deemed appropriate, and $720.00 will be assessed for each violation. Alleged Violations of ?1910.1200 et. seq.In its drilling operation, Elsing made use ofdiesel 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 drill site on October26, 1989 (Tr. 286-287).The Hazard Communication Standard at ?1910.1200 et seq. requires employers to provide information to their employeesabout hazardous chemicals known to be present in the workplace in such a manner thatemployees may be exposed under normal conditions of use or in a foreseeableemergency.\u00a0 This Judge does not believe, however, that the standard requires theemployer to anticipate the use of hazardous chemicals by other employers at remotemulti-employer worksites, or to institute a written hazard communication programaddressing hazards to which their own employees might be incidentally exposed whenvisiting or conducting separate duties at the worksites of other employers.Section 1910.1200 (e)(2) specifically addresses the multi-employer worksite and provides:(2) Multi-employer workplaces.\u00a0Employers who produce, use, or store hazardous chemicals at a workplace in such a way thatthe employees of other employer(s) may be exposed (for example, employees of aconstruction contractor working on-site) shall additionally ensure that the hazardcommunication programs developed and implemented under this paragraph (e) include thefollowing:(i) The methods the employer will use to providethe other employer(s) with a copy of the material safety data sheet, or to make itavailable at a central location in the workplace, for each hazardous chemical the otheremployer(s)’ employees may be exposed to while working;(ii) The methods the employer will use to informthe other employer(s) of any precautionary measures that need to be taken to protectemployees during the workplace’s normal operating conditions and in foreseeableemergencies; and,(iii) The methods the employer will use toinform the other employer(s) of the labeling system used in the workplace.(3) The employer may rely on an existing hazardcommunication program to comply with these requirements, provided that it meets thecriteria established in this paragraph (e).It is undisputed that the hazardous chemicals onthe Ditch Creek drill site were provided by and used in Elsing’s operations and not thoseof FMC. \u00a0 Under ?1910.1200(e)(2) Respondent was entitled to rely on Elsing’s hazardcommunication program to provide material safety data sheets and to apprise FMC employeesof any precautionary measures that needed to be taken with regard to chemicals in use byElsing.Complainant has failed to show that FMC was in violation of ? 1910.1200 et seq. onOctober 26, 1989.\u00a0 Serious citation 1, item 3 will, therefore, be dismissed in itsentirety.Findings of Fact and Conclusions of LawAll findings of fact and conclusions of lawrelevant and necessary to a determination of the contested issues have been foundspecially and appear in the decision above.\u00a0 See Rule 52(a) of the Federal Rules ofCivil Procedure. \u00a0 Proposed Findings of Fact or Conclusions of Law that areinconsistent with this decision are denied.ORDER 1. Serious citation 1, item 1, allegingviolation of ?5(a)(1) of the Act is AFFIRMED, and a penalty of $720.00 is ASSESSED. 2. Serious citation 1, item 2, alleging violation of ?5(a)(1) of the Act is AFFIRMED, anda 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 by specific OSHA regulations.\u00a0 That issue was disposed of bymotion at the hearing and will not be discussed here (Tr. 6).\u00a0 Respondent’s dueprocess argument is also found to be without merit.[[3]] Complainant introduced the U.S. Army Corpsof Engineers’ Safety and Health Requirements Manual and the U.S. Department of theInterior Bureau of Reclamation’s Construction Safety Standards to show industryrecognition of the cited hazard (Ex. C-4, C-5).\u00a0 According to CO Heier, the U.S. ArmyCorps of Engineers in Idaho is involved in surface construction on military installations(Tr. 126). \u00a0 The Bureau of Reclamation is involved with dam reconstruction (Tr.132).\u00a0 It is the opinion of this Judge that those activities are not sufficientlyrelated to the mining and exploration industries that the standard practices of theagencies involved constitute evidence of hazard recognition imputable to FMC.[[4]] Joseph Syczylo’s testimony, based onpractical experience with a working system, is credited over that of respondent’s witnessFrank Wozniak, who testified that communications via high frequency radios are ineffectivebecause they are susceptible to skip zones and shadow losses (Tr. II, pp. 18, 21-26,30-32).”