“\u00a0 UnitedStates of AmericaOCCUPATIONAL SAFETY AND HEALTHREVIEW COMMISSION112020th Street, N.W., Ninth FloorWashington,DC 20036-3457\u00a0\u00a0 SECRETARY OF LABOR, \u00a0 Complainant, \u00a0 v. OSHRC Docket No. 11-2780-A PEACOCK ENGINEERING, INC., \u00a0 Respondent. \u00a0 \u00a0ON BRIEFS:AmyS. Tryon, Attorney; Charles F. James, Counsel for Appellate Litigation; JosephM. Woodward, Associate Solicitor of Labor for Occupational Safety and Health;M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC??????????? For the Complainant\u00a0JamesA. D?Ambrosio, Esq.; Chase M. Stern, Esq.; Stark& D?Ambrosio, LLP, San Diego, CA??????????? For the RespondentDECISIONBefore:? MacDOUGALL, Acting Chairman; and ATTWOOD, Commissioner.BY THE COMMISSION:??????????? Peacock Engineering installs burial cryptsat Miramar National Cemetery in San Diego, California.[1]? Prior to installation, the company moves eachcrypt from the cemetery?s delivery area to a staging area, using a forkliftequipped with a custom-designed lifting accessory that suspends the crypt fromthe boom in wire rope slings that fit in pre-cut grooves running along thesides of the crypt.? To attach the liftingaccessory to the forklift, Peacock removed the forks from the boom andfabricated a custom attachment point.OSHA alleges that Peacock?s forklift modification violated aprovision of the material handling equipment standard, providing that ?[n]omodifications or additions which affect the capacity or safe operation of theequipment shall be made without the manufacturer’s written approval.?? 29 C.F.R. ? 1926.602(c)(1)(ii).? Administrative Law Judge Patrick B. Augustinevacated this citation item, concluding that the Secretary failed to establishthat the modification, which Peacock conceded was not approved by themanufacturer, affected the capacity or safe operation of the forklift.[2]On review, the Secretaryclaims that the forklift modification affected the ?safe operation of theequipment.?[3]? 29 C.F.R. ? 1926.602(c)(1)(ii).? The two Commission members are divided on thisissue.? To resolve this impasse, themembers agree to vacate the direction for review, thereby allowing the judge?sdecision to become the final appealable order of the Commission, with theprecedential value of an unreviewed administrativelaw judge?s decision.? See, e.g., Action Elec. Co., 25 BNA OSHC 2120, 2121 (No. 12-1496, 2016), appeal docketed, No. 16-15792 (11th Cir. Sept. 1, 2016); Cranesville AggregateCos., 25 BNA OSHC 2001, 2002 (No. 09-2011, 2016), appeal docketed, No. 16-2055 (2d Cir. June 17, 2016); Texaco, Inc., 8 BNA OSHC 1758, 1760(No. 77-3040, 1980) (consolidated); Rust Eng?g Co., 11 BNA OSHC 2203, 2205 (No. 79-2090, 1984); Safeway, Inc., 20 BNA OSHC 1021, 1023(No. 99-0316, 2003), aff?d, 382 F.3d1189 (10th Cir. 2004); Timken Co., 20BNA OSHC 1070, 1072 (No. 97-0970, 2003).?See also 29 U.S.C. ?? 659(c),660(a)-(b), 661(i).?Accordingly, the direction for review is vacated.? The separate opinions of the twoparticipating Commission members follow.SO ORDERED.\u00a0\/s\/???????????????????????????????????????????????????????? ??????????????????????????????????????????????????????????????????????????????????? HeatherL. MacDougall??????????????????????????????????????????????????????????????????????????????????? ActingChairman\u00a0??????????????????????????????????????????????????????????????????????????????????? \/s\/???????????????????????????????????????????????????????? Dated: April 27, 2017???????????????????????????????????????????????? CynthiaL. AttwoodCommissioner\u00a0\u00a0\u00a0SeparateOpinion of Acting Chairman MacDougallMacDOUGALL,Acting Chairman.My colleague and Iagree that the only issue presented in this case is whether the Secretary hasproven that the employer?s modification of a forklift?affect[ed] the . . . safe operation of the [forklift].?[4]? 29 C.F.R. ? 1926.602(c)(1)(ii).? We disagree on whether the Secretary has methis burden to prove the alleged violation.?Like the judge, I would find the Secretary failed to present credibleevidence that the modification of the forklift affected its safeoperation.? Further, I would not find, aswould my colleague, a violation based on a theory not raised by the Secretary at any point in this case (and sua sponte by her).? In my view, to do so would not be inaccordance with Commission and court precedent or Commission rules, and woulddeprive Peacock Engineering, Inc. of due process.BackgroundOn May 6, 2011, Peacockwas installing burial crypts at Miramar National Cemetery in San Diego,California.? The Miramar job for Peacockbegan in September 2010.? By the time of OSHA?sinspection, Peacock had installed approximately 11,000 crypts, each weighing8,472 pounds, using a modified SkyTrak 10054 roughterrain forklift.? To hoist the crypts,Peacock removed the forks that were originally on the end of the forklift?sboom and replaced them with an anchorage that the company fabricated.? The anchorage consisted of two steel platesand a steel ?block? welded together, with an eye-bolt welded to the block.The Secretary allegedthat Peacock ?removed the manufacturer forks, and added an employer crafted,custom attachment on the end of the [forklift?s] boom? without the approval of themanufacturer,? in violation of ? 1926.602(c)(1)(ii).? The judge found that ?\u00a01926.602(c)(1)(ii) applies, but he vacated the item based on theSecretary?s failure to establish noncompliance with the cited provision, whichthe judge viewed as requiring proof of three elements: ?(1) there was anaddition or modification to the forklift, (2) that affected [either] theforklift?s capacity or [its] safe operation, and (3) [Peacock] failed toprocure the manufacturer?s written approval.??The parties stipulated to the facts underlying the first and thirdelements,[5]but the judge concluded that the second element was not shown because theSecretary failed to ?present credible[,] objective[,]and verifiable evidence that either the capacity or the safe operation of theforklift was affected.?DiscussionOn review, theSecretary argues that the judge erred in finding that Peacock?s modification ofthe forklift did not affect its safe operation.?According to the Secretary, the relevant modification ?need not bedemonstrably defective in order for the safe operation of the forklift to be?affected? within the meaning of? ?\u00a01926.602(c)(1)(ii).[6]? He claims that the cited provision requiresmanufacturer approval of equipment modifications ?that could, knowingly or unknowingly, compromise safety.? I disagreewith the Secretary?s construction of ?\u00a01926.602(c)(1)(ii).?When determining themeaning of a standard, the Commission first looks to its text andstructure.?? JESCO, Inc., 24 BNA OSHC 1076, 1078 (No. 10-0265, 2013) (citing Superior Masonry Builders, Inc., 20 BNAOSHC 1182, 1184 (No. 96-1043, 2003)).??If the wording is unambiguous, the plain language of the standard willgovern, even if the Secretary posits a different interpretation.?? Id. (citing Superior Masonry,20 BNA OSHC at 1184; Blount Int?l Ltd.,15 BNA OSHC 1897, 1902 (No. 89-1394, 1992)).? ?Both the courts and the Commission haverejected the Secretary?s interpretation of a standard when it strains the plainmeaning of the regulatory text.?? Id. (citing Worcester Steel Erectors, Inc., 16 BNAOSHC 1409, 1418-19 (No. 89-1206, 1993)).?In making this determination, ?[a] standard must be read as a coherentwhole and, if possible, construed so that every word has some operative effect.?? Id. (citingAm. Fed?n ofGov?t Emps., Local 2782 v. FLRA, 803 F.2d 737,740 (D.C. Cir. 1986); E. Smalis Painting Co., 22 BNA OSHC 1553, 1580 (No.94-1979, 2009); Summit Contractors, Inc.,23 BNA OSHC 1196, 1202-03 (No. 05-0839, 2010), aff?d per curiam, 442 F. App?x 570 (D.C. Cir. 2011) (unpublished)).The plain language ofthe cited provision prohibits, in the absence of manufacturer approval,equipment modifications ?which affectthe . . . safe operation of the equipment.??29 C.F.R. ? 1926.602(c)(1)(ii) (emphasisadded).? ?Affect? is defined as ?to acton; to produce an effect or change in,? RandomHouse Dictionary of the English Language 24 (1971); it is not, as theSecretary would read it, the potentialfor such an effect or change.? As such,to prove a violation, the Secretary must show that the equipment?s safeoperation was in fact affected by themodification at issue.? This isconsistent with the second part of ?\u00a01926.602(c)(1)(ii),which states that ?[i]f such modifications or changesare made, the capacity, operation, and maintenance instruction plates, tags, ordecals shall be changed accordingly,? and ?[i]n nocase shall the original safety factor of the equipment be reduced.?? Because this part of the standard requiresthe employer to make labeling changes reflectingthe modification?s effects, and to ensure that the altered capacity\/operationlabels and instructions maintain the original safety factor, the standardcontemplates manufacturer approval of modifications that actually affect safe operation.?Indeed, this second part of the standard does not condition therequirement to alter the capacity\/labels, etc., if necessary?it directs that they be made ?accordingly.?? In short, given the text of the standard andits context, I would find that the Secretary?s position that the standardrequires manufacturer approval for modifications that could, but do not in fact, affect safety is inconsistent with thestandard?s plain meaning and should therefore be rejected.? SeeJESCO, 24 BNA OSHC at 1078.Thus, the Secretarymust establish that Peacock?s forklift modification affected its safeoperation.? I agree with the judge thatthe Secretary?s ?arguments with respect to the safe operation of the forkliftare speculative at best? and limited to ?unexamined or untested assumptionsabout the integrity of the weld.?? Thetestimony of the Secretary?s expert, James Nelson, was devoted to thespeculative risk that the weld attaching the eye bolt to the forklift could failwhile supporting a dynamic load.? Nelsonreached this opinion after reviewing a photograph of the anchorage and a videoof the forklift transporting a crypt, but he did not physically examine theforklift or the anchorage.? Addressingthe welded connection of the eye-bolt to the block, he testified that ?in 90percent of the cases where any load transferring member is designed, the mostconcerning feature of that design is always the connection? of that member,particularly where, as here, the load is dynamic rather than just static.? Specifically, Nelson testified that ?[t]henature of the area,? the ?large inconsistencies in the surface terrain,? andthe fact that ?[t]he load . . . was swinging? can ?put very large stresses onthe welded attachment,? and that the weld used to connect the eye-bolt ?has anumber of ways in which it can fail.? Andwhen it fails . . . very small inclusions in the weld can very quickly turninto linear flaws, cracks, and propagate through the weld in a single use.?? He also stated that the geometry,configuration, and metallurgy of the weld are ?key factors.?Although Nelson?stestimony appears to be that the design of the anchorage was such that it wasessential for the weld to have been done properly, he never identified anyspecific design or fabrication flaws in the eye-bolt weld or other parts of theanchorage; in other words, he offered no opinion on whether the weld was infact deficient.? As noted by the judge,?Mr. Nelson?s testimony was, for the most part, couched in hypotheticals aboutwhat could happen if the weld were to break in a certainway; however, none of those hypotheticals actually addressed identifiabledeficiencies in the welded portion of the custom attachment.?? As such, the judge gave ?little weight? toNelson?s testimony on the issue of whether the modification of the forkliftaffected its safe operation.? I agree;therefore, I would find the Secretary has failed to meet his burden to prove aviolation of the cited standard.This should end thediscussion in this case as it does not appear that my colleague disagrees thatthe record is insufficient to establish that either the design of theattachment or the weld itself were in fact deficient.? However, in an effort to salvage theSecretary?s case, she advances a theory not even raised by the Secretary.? My colleague contends that the Secretarynonetheless established that the modification of the forklift ?affect[ed] the .. . safe operation of the equipment? on the theory that it changed theequipment ?to essentially that of a crane??a term not found once in theSecretary?s argument, either before the judge or upon review.? My colleague would find that because Peacock?transformed the forklift into a crane,? it was not operating as intended andwas therefore not safe.[7]In support of herposition, my colleague cites testimony by Nelson that, upon watching a video ofthe operating forklift, he observed a swaying motion of the crypt.? However, Nelson?s testimony regarding theswinging of the crypt was, as the judge found, limited to how such swingingcould impart ?dynamic, lateral stress on the weld, which, if it failed, could strike employees in the vicinity of theload, including the operator of the forklift.??(Emphasis added.)? As such, evenunder the Secretary?s own theory, any hazard presented by the swinging waslimited to if the weld failed?aclaim, as already discussed, the judge found to be speculative. In addition, the judgecredited the testimony of Peacock?s expert, James Robert Harrell, on the issueof whether there was any sway that affected the safe operation of theforklift.? Harrell noted that theforklift, although it is depicted in the video as operating on uneven groundwhile hauling a crypt, was able to remain stable with all wheels firmly on theground.? Harrell also noted that thedesign of the forklift, including its front tires and outriggers, accounted foroperating in rough terrain and for uneven and dynamic loads, and concluded thatthe modification did not affect its safe operation.? I find no basis to disrupt the credibilitydeterminations and factual findings of the judge.[8]I am particularlyunwilling to upset the judge?s sound ruling pursuant to my colleague?s theory, raised\u00a0sua sponte on\u00a0review,\u00a0and not\u00a0raised, tried, or argued by theparties.[9]\u00a0 In general, an appellate court doesnot consider an issue not passed upon below.?In Hormel v. Helvering,312 U.S. 552 (1941), the Supreme Court explained that this is ?essential inorder that parties may have the opportunity to offer all the evidence theybelieve relevant to the issues . . . [and] in order that litigants may not besurprised on appeal by final decision there of issues upon which they have hadno opportunity to introduce evidence.?? Id. at 556.? Applying this general rule, in Singleton v. Wulff,428 U.S. 106 (1976), the Court reversed an appellate court holding on anissue not passed on below.? The Courtnoted it had ?no idea what evidence, if any, petitioner would, or could, offerin defense of this statute, but this is only because petitioner has had noopportunity to proffer such evidence.?Moreover, even assuming that there is no such evidence, petitionershould have the opportunity to present whatever legal arguments he may have indefense of the statute.?? Id. at 120.Indeed, our ownCommission Rules follow this principle.? Commission Rule 92(c), 29 C.F.R. ?2200.92(c), provides as follows:(c)Issues not raised before Judge. TheCommission will ordinarily not review issues that the Judge did not have theopportunity to pass upon.? In exercisingdiscretion to review issues that the Judge did not have the opportunity to passupon, the Commission may consider such factors as whether there was good causefor not raising the issue before the Judge, the degree to which the issue isfactual, the degree to which proceedings will be disrupted or delayed byraising the issue on review, whether the ability of an adverse party to press aclaim or defense would be impaired, and whether considering the new issue wouldavoid injustice or ensure that judgment will be rendered in accordance with thelaw and facts.The Commission?s application of the rulealso bears this out.[10]? See\u00a0J.L.Manta Plant Servs. Co., 10 BNA OSHC 2162, 2163-64(No. 78-4923, 1982) (amendment sought by the Secretary for the first time onreview is untimely because the Secretary could have moved to amend before thejudge); Dover Elevator Co., 16 BNAOSHC 1281, 1285-86 (No. 91-0862, 1993) (declining to address certain argumentswhere the ?Secretary has neither made nor sought to make any showing of goodcause for not raising these arguments below, [or] . . . advised us of anygrounds on which we can conclude that consideration of his arguments iswarranted under . . . Rule 92(c)?); EricksonAir-Crane, Inc., No. 07-0645, 2012 WL 762001, at *2 n.2 (OSHRC Mar. 2,2012) (declining to consider, in section 5(a)(1) case, additional method ofhazard abatement proposed by the Secretary, ?as it was not raised before thejudge?) (citing 29 C.F.R. ? 2200.92(c)).? Here, my colleague hasconstructed out of whole cloth and without addressing any of these factors atheory that is not supported by the record or the judge?s credibilitydeterminations and factual findings.?Without fair notice, consideration of such a theory would deprive Peacockof due process as the company had no opportunity to litigate the issue.\u00a0For all these reasons, Iwould vacate the citation.\u00a0\u00a0\u00a0\/s\/???????????????????????????????????????????????????????? Dated: April 27, 2017???????????????????????????????????????????????? HeatherL. MacDougallActing Chairman\u00a0\u00a0\u00a0Separate Opinion of CommissionerAttwoodATTWOOD,Commissioner.The only issue here is whether Peacock?smodification of a forklift?replacing the forks with a company-crafted, customhook attachment on the end of the boom to hoist the crypts??affect[ed] the . .. safe operation of the [forklift].?? 29C.F.R. ? 1926.602(c)(1)(ii).? The judge found that it did not, noting thatthe Secretary?s expert, who ?was most concerned about the stability of theweld? of an eye-bolt to which the custom attachment was affixed, failed to cite?identifiable deficiencies in the welded portion.?? The cited standard, however, does not requireproof of defective construction, and the evidence here, despite my colleague?sprotestations to the contrary, addresses more than just the physical integrityof this weld.? Indeed, the record showsthat Peacock?s modification changed the nature of the equipment from that of aforklift?which lifts static loads from below?to essentially that of acrane?which hoists swinging loads from above?and expert testimony in the recordshows that such swinging loads are hazardous.?As such, I would conclude that Peacock?s modification ?affect[ed] the .. . safe operation? of its forklift.Here we have a modification that changedthe very nature of the forklift.? As theOSHA compliance officer explained, a forklift is designed to move a staticload, ?lift a stationary object [from below], . . .move it forward, and place it down somewhere.??Peacock?s modification enabled the forklift to lift and carry suspended,dynamic loads:? heavy ?objects that aregoing to sway underneath a boom.?? Inother words, Peacock transformed the forklift into a crane?the forklift was nolonger operating in the manner intended, let alone in the manner contemplatedand blessed by its manufacturer.? This isevident by simply watching a video of the modified forklift in operation.? After viewing the forklift hoist a crypt andtravel with it swinging from the boom for about 200 feet,[11]the Secretary?s expert stated that the fact that ?[t]he load itself . . . wasswinging,? coupled with what ?appeared to be large inconsistencies in thesurface terrain,? posed a danger to ?not just employees that might be in thearea of the load, but the way that was swinging[,] the[forklift] operator himself.?[12]? My colleague accuses me of constructingthis theory?that Peacock?s transformation of the forklift into a crane, whichhandles hazardous swinging loads, affected the equipment?s safe operation??outof whole cloth,? asserting that it was not raised by the Secretary ?at anypoint? in this litigation and is not supported by the record.? This accusation is unfounded.? The Secretary stated in his post-hearingbrief to the judge that the OSHA compliance officer ?testified that the . . . safe operation of the forklift [was] affected because the forklift?sanchorage point was altered, and theforklift was now lifting from above the load, rather than below it.?? (Emphasis added.)? And the record shows that Peacock was wellaware that the ?safe operation? issue encompassed more than simply the physicalintegrity of the weld.? At the hearing,Peacock?s own counsel specifically asked the company?s expert about testimonythe Secretary had elicited regarding the hazards of a swinging load:[13]Q.? The [Secretary?s] expert . . . was criticalof the use of the forklift over the terrain and noted that there was a sway ina video . . . [D]oes that video raise any concernswith you with respect to safety?A.? Not the way that that was beingoperated.? No.Q.? And is there anything about the sway of theburial crypt that was suspended as a load ? did that in any way present arecognized hazard to you as you?re sitting here and looking at it?A.? No.In short,the hazards posed by a swinging load suspended from a forklift that was notdesigned to handle it, and the notion that these hazards ?affect[ed] . . . safeoperation,? were plainly at issue in this case, and so my colleague?s concernabout the deprivation of Peacock?s due process rights is unwarranted.Indeed, that the forklift?s modificationaffected its safe operation is further confirmed by specific requirements inOSHA?s cranes and derricks in construction standard.? See29 C.F.R. Subpart CC.? The scopeprovision of that standard renders forklifts, once modified in the manner atissue here, subject to the requirements of Subpart CC.? The crane standard ?applies to power-operatedequipment, when used in construction, that can hoist,lower and horizontally move a suspended load.??29 C.F.R. ? 1926.1400(a).? The standard generally excludesforklifts.? 29 C.F.R. ?1926.1400(c)(8).? However, thestandard covers forklifts ?when configured to hoist and lower (by means of awinch or hook) and horizontally move a suspended load.?\u00a0 Because of itsinclusion within the scope of the crane standard, a forklift once modified inthis manner would be subject to the stringent requirements for traveling with aload.? 29 C.F.R. ?1926.1417(u) (?Traveling with a load?).?And another requirement relates specifically to the hazards posed byload swing.? See 29 C.F.R. ?\u00a01926.1417(v) (?Rotational speed of theequipment must be such that the load does not swing out beyond the radius atwhich it can be controlled.?).? Theserequirements establish that there are known hazards associated with modifying aforklift in the manner at issue here.[14]? In these circumstances, I would concludethat the Secretary has shown that the forklift modification affected its safeoperation.? And there is no dispute thatPeacock did not obtain the forklift manufacturer?s approval of the modificationprior to operating the forklift.?Accordingly, I would affirm Item 5.\u00a0\u00a0??????????????????????????????????????????????????????????????????????????????????? \/s\/???????????????????????????????????????????????????????? Dated: April 27, 2017???????????????????????????????????????????????? CynthiaL. Attwood???????????????????????????????????????????????????????????????????????????????????Commissioner\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Some personal identifiers have been redacted for privacypurposes.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0\u00a0\u00a0\u00a0 SECRETARY OF LABOR, ?????????????????????????????????????? Complainant, ????????????? ??????????????????? ??????????????????????????v.??? PEACOCK ENGINEERING, INC.,?????????????????????????????????????????????? ??????????????????????????????????????? Respondent. \u00a0?????? ???? OSHRC DOCKET NO.?? 11-2780? \u00a0\u00a0\u00a0\u00a0Appearances:\u00a0Grace Kim, Esq. and Natalie Nardecchia, Esq., Office of the Solicitor, U.S. Departmentof Labor, Los Angeles, California??????????????????????????????? For Complainant\u00a0??????????????? James A. D?Ambrosio, Esq.,Stark & D?Ambrosio, LLP, San Diego, California??????????????????????????????? For Respondent\u00a0Before:? Administrative Law Judge Patrick B. Augustine\u00a0DECISION AND ORDERI.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ProceduralHistory??????????? Thisproceeding is before the Occupational Safety and Health Review Commission (?theCommission?) pursuant to Section 10(c) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ? 651 et seq.(?the Act?).? The Occupational Safety andHealth Administration (?OSHA?) conducted an inspection of a PeacockEngineering, Inc. (?Respondent?) worksite in Miramar, California on May 20?24,2011.? As a result of the inspection,OSHA issued a Citation and Notification of Penalty (?Citation?) to Respondentalleging seven serious violations of the Act.[15]? Respondent timely contested the Citation, anda trial was held on November 13?15, 2012 in San Diego, CA.? Both parties filed post-trial briefs.???? \u00a0II.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0?Jurisdiction??????????? The parties have stipulated that theAct applies and the Commission has jurisdiction over this proceeding pursuantto ? 10(c) of the Act, 29 U.S.C. ? 659(c).?(Jt. Ex. 1). ?Further, Respondentalso stipulated that, at all times relevant to this matter, it was an employerengaged in a business affecting commerce within the meaning of ? 3(5) of theAct, 29 U.S.C. ? 652(5). ?Slingluff v. OSHRC, 425F.3d 861 (10th Cir. 2005).III.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0??StipulationsThe partiessubmitted Joint Stipulations to the Court, which are set forth below: Jurisdiction over this action is conferred on the Court pursuant to Section 10(c) of the Occupational Safety and Health Act of 1980 (29 U.S.C. ? 651 et seq.) (?Act?). Respondent and its employees are engaged in receiving, handling and otherwise working on and with goods and materials that are moving or have moved in interstate commerce within the meaning of the Act such that, by virtue of its activities, Respondent has at all times material been an ?employer? engaged in a business affecting commerce within the meaning of the Act, ? 3(5), 29 U.S.C. ? 652(5). On or about May 6, 2011, Respondent was acting as a subcontractor at Miramar National Cemetery (?Site?) and was providing crypt installation services at the Site. The work method used by Respondent to install crypts at the Site included use of one SkyTrak 10054 rough terrain forklift, with a custom lifting accessory (?Forklift?), to move crypts from one location to another at the Site. The Forklift?s custom lifting accessory was designed by Respondent?s President, Larry Peacock.? The work method used by Respondent to install crypts at the Site included use of one LBX Link-Belt 225 excavator, with a custom lifting accessory (?Excavator?), to move crypts to their final resting place at the Site. The Excavator?s custom lifting accessory was designed by Respondent?s President, Larry Peacock. The work method used by Respondent to install crypts at the Site involved one employee operating the Excavator to move the suspended burial crypt to its final resting place, with a second employee standing approximately two (2) feet from the suspended burial crypt to help maneuver the crypt into place with his hands. The work method used by Respondent to move the suspended burial crypt did not involve the use of tag lines. On May 6, 2011, an accident occurred at the Site where an employee of Respondent, [redacted], suffered a thumb amputation injury (?Accident?).? The Accident occurred when a wire rope sling that was being used to help move a suspended burial crypt slipped out of a groove of the burial crypt and amputated [redacted]?s left thumb.? At the time of the accident, [redacted]?s hands were positioned above the wire rope sling suspending the burial crypt.? The photograph attached [to the parties? stipulations] as Exhibit A, and taken later on the same date of the Accident, is a true and accurate depiction of the burial crypt, wire rope sling, and Excavator involved in the Accident. Larry Peacock is, and all relevant times has been, Respondent?s President. Jonathan Olivares is, and at all relevant times has been, Respondent?s General Office Manager. [redacted] was an employee of Respondent and worked as a crypt installer at the Site. Tyler Felton was an employee of Respondent and worked as a foreman at the Site. At the time of the Accident, Mr. Felton was operating the Excavator. At the time of the Accident, [redacted] was on the ground next to the suspended burial crypt, helping to maneuver the load into place with his hands. The Forklift was not marked to indicate its safe working load. Respondent did not obtain written approval from the Forklift manufacturer for the modifications to the Forklift and its custom lifting accessory. The Excavator was not marked to indicate its safe working load. Following an inspection of the Site by a Compliance Safety and Health Officer (CSHO) for the Occupational Safety and Health Administration, the Secretary issued one citation with six (6) serious items to Respondent on or about October 7, 2011 (?Citation?).? The Citation attached hereto as Exhibit B is a true and correct copy of the Citation at issue in the present matter. The Citation gives Respondent adequate notice of the alleged violations. The Citation was timely issued to Respondent. \u00a0\u00a0IV.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0SettledCitationsOn thefirst day of trial, the parties agreed to settle Citation 1, Items 2a and 2b,and Item 4.? (Tr. 14?15).? Citation 1, Items 2a and 2b were groupedtogether for penalty purposes and alleged serious violations of 29 C.F.R. ?1926.54(d) and 29 C.F.R. ? 1926.54(e), respectively.? The parties agreed to re-classify theseviolations as other-than-serious and reduce the penalty from $1,800 to$900.? Citation 1, Item 4 alleged a seriousviolation of 29 C.F.R. ? 1926.301(d) with a proposed penalty of $1,800.? The parties agreed to re-classify thisviolation as other-than-serious and reduce the penalty to $900.? No other changes were made as a part of thisagreement.? (Tr. 15).? V.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Findings ofFact[16]Respondentis a subcontractor that installs crypts at national cemeteries around theUnited States, including, as is relevant to the present matter, MiramarNational Cemetery (?worksite?).? (Jt. Ex.1).? Respondent was hired by a generalcontractor, KevCon, which was in charge of theworksite as a whole.? (Tr.449).? KevCon,in turn, was hired by the Veteran?s Administration (?VA?), which manages thecemetery.? (Tr. 449).? Respondent employs between 10 and 12employees.? (Tr. 440).? At the time of the inspection, Respondent wasworking on two crypt installation projects?the project at Miramar NationalCemetery and another project at Riverside National Cemetery.? (Tr. 440).? Since 1995, Respondent?s President, LarryPeacock, stated that the Respondent had installed approximately 400,000crypts.? (Tr. 438??40).? At the Miramar worksite, Respondent hadinstalled approximately 11,000 crypts.? (Tr. 440). ??????????? In order to install 11,000 crypts,1.5 to 2 acres of land was excavated in order to place the crypts below groundlevel.? (Tr. 48, Ex.C-1, C-4).? Once the area wascleared, Respondent used a series of uncapped, reinforced steel bars (?rebar?),which were pounded into the ground and connected by a chalk line, to ensurethat the crypts were properly aligned in even rows.? (Tr. 56).? The crypts were delivered by a flatbed truckto the worksite by the crypt manufacturer, Universal Precast.? (Tr. 48?49, 449).? Upon delivery, an engineer from the VA wouldinspect each crypt for defects.? (Tr. 449).? If thecrypt passed inspection, the VA engineer would mark it with a red dot; however,if it did not pass inspection, the crypt would be marked with a green dot.? (Tr. 465?68).? ??????????? Once the crypts had been deliveredand inspected, Respondent moved the crypts that passed inspection from thedelivery area to a staging area, where the crypts were placed much closer totheir final resting place.? (Tr. 49).? Respondentused a rough terrain forklift, SkyTrak Model 10054,to move the crypts to the staging area.? (Tr. 49, Ex. J-1, C-12).?Respondent then used an excavator, LBX Link-Belt 225, to move the cryptsfrom the staging area to the spot where they would finally be installed.? (Tr. 56, Jt. Ex. 1).? Both the excavator and the forklift werefitted with lifting devices, which were custom-designed by Mr. Peacock to lift,transport, and install the crypts.? (Jt.Ex. 1).? The cryptswere manufactured with pre-cut grooves, which ran the length of both sides ofthe crypt and then angled upwards at the corners.? (Tr. 463, Ex. C-3, C-5).??? When the crypts were lifted, the customlifting devices were attached to the pre-cut grooves with two 7\/16-inch wireslings?oriented in a basket hitch?which were attached to a spreader bar.? (Ex. C-7, C-29).? The primary difference between the forkliftand the excavator was the manner in which the custom device was attached to theboom.? The custom lifting device wasattached to the boom of the excavator through a series of two shackles and ahook, which connected to a swiveling eye bolt that was attached to the spreaderbar.? (Ex. C-7).? The custom device attached to the forklifthad a similar series of connecting devices starting at the spreader bar;however, the manner in which it was attached to the boom was muchdifferent.? (Ex. C-13).? Whereas the lifting device was attached tothe excavator boom by attaching a shackle to a pre-existing anchorage point,Respondent connected to the forklift boom a U-shaped attachment that wascomposed of three metal plates that were welded together and held steady withtwo cotter pins.? (Tr.93, Ex. C-14).? Respondent weldedan eye bolt onto the outward facing metal plate, and the custom lifting devicewas connected to the forklift boom through the welded eye bolt.? (Ex. C-14, C-15).? ??????????? Each burial crypt weighs 8,472pounds.? (Tr. 58, Ex.C-28).? Both the excavator and theforklift have plates affixed to them that indicate their load capacities at thetime of manufacture.? (Tr.373, Ex. C-10, C-19).? In the caseof the excavator, a chart is provided to illustrate the maximum capacity basedon certain variables, such as bucket size, arm length, load radius, and loadheight.? (Ex. C-10).? In the case of the forklift, the plateindicates a maximum capacity of 10,000 pounds.?(Ex. C-19).?Neither of the custom accessories has been labeled to indicate theirload capacities; rather, the only information regarding the capacity of thecustom accessories is the Certex sling chart, whichindicates the load capacity of the 7\/16-inch slings used by Respondent whenplaced in specific configurations.? (Ex. C-29).? Theparties dispute which configuration was being used?Respondent contends that theslings were oriented in a vertical basket, which has a load capacity of 3.9tons per sling, whereas Complainant argues that the slings were oriented at anangle, which can reduce the load capacity to as little as 1.9 tons persling.? (Ex. C-29).? As regards the sling configuration, the Courtcredits the testimony of Complainant?s expert and professional engineer, JamesNelson, who testified that the orientation of the sling legs in Exhibit C-24were at an angle relative to the horizontal point of engagement on thecrypt.? (Tr. 348?349).? Mr. Nelson?s understanding is confirmed bythe diagrams contained in the Certex sling chart,which show the orientation of the sling legs relative to the load.? (Ex. C-29).? This understanding also comports with thedefinition provided for ?angle of loading? provided in 29 C.F.R. ? 1910.184(d).[17]? Mr. Nelson also credibly testified as to theimpact the angled orientation of the slings would have on their tensilestrength, which explains the reduction in load capacity at different angles.[18]? (Tr. 351?52).? The Court, however, is not as convinced byMr. Nelson?s assessment of the sling angle.?Mr. Nelson attempted to guess at the angle of the slings based uponExhibit C-24, which shows the slings attached to the crypt but not under fullload.? (Tr. 350).[19]? Mr. Nelson testified that the slings, notunder full load, appeared to be at 30 degrees; however, he also testified thatunder a full load, it could be more than that.?(Tr. 349, Ex. C-24).? Ultimately, Mr. Nelson testified that tradepractice dictates that if the angle of the slings falls between two angles, itis proper to choose the lesser angle to determine load capacity.? (Tr. 350).? That said, Mr. Nelson?s assessment of thesling angle is not based upon actual measurement, noron actual operating conditions.? For theabove stated reasons, the Court finds the testimony of Mr. Nelson, as itrelates to the sling angle, should be accorded little weight.? Accordingly, the Court finds that, at worst,the combined sling capacity is 3.8 tons (7,600 pounds); however, given Mr.Nelson?s testimony that the angle would be greater under full load, thecombined capacity of the slings is likely greater. ??????????? Each of the crypts has to be alignedwithin a quarter-inch of the parallel chalk line and set next to one another inevenly spaced 8-foot increments.? (Tr. 474?75, Ex. C-4, C-7).?In order to achieve this, the final step in the installation processinvolves two employees?an employee to operate the excavator and another groundemployee to guide the crypt.? (Tr. 234).? Theexcavator operator affixes the sling legs to the pre-cut grooves on the cryptby hand, returns to the excavator, and swings the crypt into position for finalplacement.? (Tr. 236,239).? As the crypt is being movedinto position, the ground employee stands clear of the load.? (Tr. 240?43).? Once the crypt is in position, the excavatoroperator lowers the crypt to a height of 1?2 feet off of the ground.? (Tr. 241).? At this point, the ground employee standsapproximately 2 feet away from the crypt and maneuvers it by hand in order toget the proper alignment, in some cases spinning it in order to achieve theproper orientation.? (Tr. 241, Jt. Stip.No. 8).? Once it is properly aligned, theexcavator operator sets the crypt down on a patch of pea gravel, which allowsfor proper drainage and leveling of the crypt.?(Tr. 235).?Using a laser, Respondent ensures that the crypt is level and is at theproper elevation.? (Tr.450).? If the crypt is not level,the excavator operator will lift the crypt out of position and allow the groundemployee to add, spread, or remove pea gravel to achieve the properelevation.? (Tr.247?48).? This leveling processwould be accomplished with a long-handled tool, such as a rake or shovel, whichwould obviate the need to physically reach under the crypt while it wassuspended.? (Tr. 248).? If the leveling measurements wereparticularly off, then the excavator operator would move the crypt out of theway to allow the ground employee to place additional gravel in a hard to reacharea.? (Tr. 248).? ??????????? On May 6, 2011,[redacted] was working as a ground person at the worksite while his foreman,Tyler Felton, was operating the excavator.? During the process of orienting one of thecrypts, one of the wire slings slipped from its pre-cut groove and amputated[redacted]?s thumb.? (Jt. Ex. 1).? Further investigation revealed that a latentdefect in the cement caused the sling?s anchor point on the corner of the cryptto crumble, which, in turn, caused the sling to slip out of place.? (Tr. 604).? However, when the crypt failed, the slingslipped upward and tightened down on the upper portion of the crypt, whichprevented it from falling to the ground. (Tr. 605).? This incident was reported to Cal-OSHA, whoreferred the case to OSHA because the incident occurred on federalproperty.? (Tr. 45?46).? An investigation was conducted on May 20?24,2011 by Compliance Safety and Health Officer (?CSHO?) Pete Mollenberndt.? (Tr. 46).? As a result of his inspection, CSHO Mollenberndt issued the Citation.? VI.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ControllingCase LawToestablish a prima facie violation of Section5(a)(2) of the Act, Complainant must prove by apreponderance of the evidence that:? (1)the standard applies to the cited condition; (2) the terms of the standard wereviolated; (3) one or more of the employees had access to the cited condition;and (4) the employer knew, or with the exercise of reasonable diligence couldhave known, of the violative condition.? Ormet Corporation, 14 BNA OSHC2134 (No. 85-0531, 1991).Toestablish a prima facie violation ofSection 5(a)(1) of the Act, also known as the general duty clause, Complainantmust prove by a preponderance of the evidence that:? (1) a condition or activity in the workplacepresented a hazard to employees; (2) the employer or its industry recognizedthe hazard; (3) the hazard was likely to cause death or serious physical harm;and (4) a feasible and effective means existed to eliminate or materiallyreduce the hazard. Kokosing Constr. Co., 17 BNA OSHC 1869 (No. 92-2596, 1996).? The evidence must also show that the employerknew or with the exercise of reasonable diligence, should have known of thehazardous condition. ?Otis Elevator Company, 21 BNA OSHC 2204(No. 03-1344, 2007).Aviolation is ?serious? if there was a substantial probability that death orserious physical harm could have resulted from the violative condition. 29 U.S.C. ? 666(k).?Complainant need not show that there was a substantial probability thatan accident would actually occur; he need only show that if an accidentoccurred, serious physical harm could result.?Phelps DodgeCorp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984).? If the possible injury addressed by aregulation is death or serious physical harm, a violation of the regulation isserious.? Mosser Construction, 23 BNAOSHC 1044 (No. 08-0631, 2010); Dec-TamCorp., 15 BNA OSHC 2072 (No. 88-0523, 1993).? VII.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Conclusionsof LawA.\u00a0\u00a0\u00a0\u00a0Citation 1,Item 1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0i.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0General Duty ClauseComplainantalleged a serious violation of the Act in Citation 1, Item 1 as follows:Section 5(a)(1) of theOccupational Safety and Health Act of 1970:?The employer did not furnish employment and a place of employment whichwere free from recognized hazards that were causing or likely to cause death orserious physical harm to employees in that employees were exposed toamputation, struck by and crushed by hazard, while guiding a suspended load byhand. a)\u00a0\u00a0\u00a0\u00a0\u00a0Miramar National Cemetery ? On or about 06MAY11, an employee sufferedan amputation injury when the burial crypt he was guiding by hand slipped inits wire rope basket hitch, the wire rope left grooves cut into the corner ofthe burial crypt, the employee?s hand was positioned above the basket hitch onthe suspended load, the burial crypt slipped down approximately eight inchesbefore the wire rope hitch caught it, the employees left hand was caught by thewire rope at his left thumb, amputating the thumb. ???\u00a0Among other methods, feasible andacceptable methods to correct this hazard is to:\u00a0(1)\u00a0\u00a0Follow the American Society of Mechanical Engineers (ASME B30.9-1996,Slings) Safety Standard for Cranes, Derricks, Hoists, Hooks, Jacks, and Slings,Section 9-2.9:? Operating Practices,which states:\u00a0(h) Portions of the human bodyshould be kept from between the sling and the load and from between the slingand the crane hook or hoist hook.\u00a0(i)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Personnel should stand clear of the suspended load\u00a0(r)?The sling?s legs should contain or support the load so that the loadremains under control\u00a0(2)\u00a0\u00a0Follow 29 C.F.R. 1910.184(c)(6) Slings shallbe securely attached to their loads.\u00a0(3)\u00a0\u00a0Reject burial vaults with manufacturer flaws that can affect thestability of the suspended load.? \u00a0The cited standard provides: ?Each employer shall furnish to each of his employeesemployment and a place of employment which are free from recognized hazardsthat are causing or are likely to cause death or serious physical harm to hisemployees. \u00a029 U.S.C. ?654(a)(1). ??????????? This citation is directed at thework method described above, which Respondent employs to install the burialcrypts in their final resting place.? Inparticular, Complainant cited Respondent for exposing its employees toamputation, crushing, and struck-by injuries during the course of guiding asuspended crypt by hand.? ??????????? First, the Court must determinewhether the work method employed by Respondent presented a recognized hazard toits employees.? According toComplainant?s expert, Mr. Nelson, there is no safe location to place one?shands on a suspended load, which is one part of Respondent?s work method.? This conclusion is based, in part, upon theAmerican Society of Mechanical Engineers (ASME B30.9-1996, Slings) SafetyStandard for Cable-Ways, Cranes, Derricks, Hoists, Hooks, Jacks, and Slings,which is a set of consensus standards governing the use of slings.? (Ex. C-30).? Although many of the specific provisions werediscussed at trial, the three that are most pertinent to this discussion aresubsections (h), (i), and (r), which are referencedabove.? (Ex. C-30).? Complainant contends that the work method employed byRespondent is hazardous in light of Respondent?s failure to adhere to thesestandards.? Specifically, Complainant arguesthat Respondent?s work practice is unsafe in light of the following:? (1) Respondent uses a basket hitch slingconfiguration, which is prone to disengagement from the load because there isno positive contact between the load and lifting mechanism; (2) the purportedinsufficiency of the load capacity of the slings and custom lifting accessoryincreased the potential for disengagement; and (3) the use of hydraulicequipment, which Complainant?s expert testified is jumpy and erratic,increasing the likelihood of the crypt swinging unexpectedly.? (Tr. 338?40).? Respondent, on the other hand, argues that its extensive useof this equipment and method without incident shows the absence of a recognizedhazard because its method for aligning crypts by hand requires that employeesto keep their bodies and body parts out of specified ?kill zones?, wherein thepotential for injury is high.? (Tr. 446, Ex. R-5).? ??????????? The Court finds that working aroundsuspended loads is a hazard that is recognized both by the industry engaged inhoisting materials and by Respondent specifically.? See Kokosing, 17 BNA OSHC at 1873 (voluntary industry codesmay be used to demonstrate industry recognition).? However, in light of; (i)the training provided by Respondent; (ii) the work methods Respondent employs;and (iii) the Complainant?s own recognition that every method of abatementidentified in its Citation as being feasible to eliminate the hazard is beingdone by the Respondent, the Court finds that Respondent?s employees were notexposed to the hazard identified by Complainant.? First, theCourt would note that, with the exception of when the load is 1?2 feet off ofthe ground, Respondent?s employees stand clear of the suspended load.? It is not clear to this Court that the ASME standard,which states that ?[p]ersonnel should stand clear ofthe suspended load,? is absolute.? Thestandard is couched in discretionary (should) rather than mandatory (shall)terms, and both experts stated that there are circumstances in which employeesneed to stand near a suspended load in order to guide it.? (Tr. 317, 398, 603?604).? Mr. Nelson, Complainant?s expert, testifiedthat the nature and difficulty of certain work, such as handling I-beams,allows for work on suspended loads.? (Tr. 397?98).? Thisunderstanding is confirmed by the standards found at 29 C.F.R. ? 1926, SubpartCC, Cranes and Derricks in Construction, which allows for employees to standwithin the fall zone when guiding a load.?See 29 C.F.R. ?1926.1425(b).? Further, the Court wouldalso note that subsections (h) and (i) of the ASMEstandards appear to be at odds with one another.? If employees are always supposed to standclear of suspended loads, then it would appear unnecessary to also require thatthey keep their hands and body parts from between the sling and the load.? That is, unless, there are circumstances inwhich employees need to stand near the suspended load in order to guide it; inwhich case, the employee would need to be sure to avoid placing their handsand\/or body parts in a position where there is a potential pinch point.? Unfortunately for [redacted], the hazardassociated with placing your hands between the sling and the load came tofruition; however, the Court finds that this was a product of his failure to followwork rules, not from the hazard associated with standing near suspended loads.[20]? ??????????? Second, the Court is unconvinced byComplainant?s other assertions regarding the purported problems associated withRespondent?s use of a basket hitch configuration or its use of an excavator tohoist the crypts.? The basket hitchconfiguration of the sling is clearly an acceptable method for hoisting as itis listed in both the Certex load capacity chart (Ex.C-29) as well as in 29 C.F.R. ? 1910, Subpart N.? See 29C.F.R. ? 1910.184 fig. N-184-4.? Merely opining that such a configuration isprone to disengagement, without describing why Respondent?s use of thatparticular set-up was deficient?and in the face of OSHA standards that allowits use?is insufficient to establish a hazard.?As noted above, the Court is also unpersuaded by Mr. Nelson?scalculation of the sling angle and, thus, his determination of the slingcapacity.? The Court?s conclusion isbuttressed by the fact that Respondent has used this particular set-upthousands of times without an incident involving the actual ability of theslings to hold the load.[21]??????????? Finally, the Court does not findthat the use of a hydraulic excavator imposed a unique hazard as posited by Mr.Nelson.? Respondent?s expert, Mr. Harrell,credibly testified that, although hydraulic equipment used to present theproblem of erratic movement, such concerns have been remedied through theadvances in hydraulic technology.? (Tr. 587?88).? TheCourt is convinced in particular by Mr. Harrell?s experience operating andtraining the operation of such equipment, as well as his testimony regardingthe use of hydraulic excavators to carry suspended loads in construction andunderground work.? (Tr.557, 587).? ??????????? ?The Court is also unconvinced that Respondentwas aware of the hazard identified by Complainant.? If the hazard addressed by this citation itemis, as the proposed abatement suggests, the potential for amputation injuriesas a result of the sling not being securely attached to the load, the Courtfinds that such problems were not attributable to the work method employed byRespondent.? The injury suffered by[redacted], while unfortunate, was the product of a latent defect in the cryptthat could not have been foreseen by Respondent.? Each crypt was quality checked by a VAengineer prior to being transported to the staging area.? Although, as Complainant points out, loadshad slipped in the past, nobody testified that the lifting system failed;rather, this was a product of crypt defects, most of which were caught prior tobeing installed.? (Tr.468?69).? Respondent accounted forthis by training its employees to look at the crypt grooves prior to attachingthe slings and to place their hands below the sling and out of the way of thepinch point.[22]? (Tr. 245, 469?70).?? Ultimately, the Court finds that Respondentused reasonable diligence to uncover and address the hazards at itsworksite.? See N & N Contractors, Inc. v. OSHRC,255 F.3d 122, 127 (4th Cir. 2001).???????????? As previously stated, the Court isreluctant to find exposure to a hazard existed when every means of abatementidentified by the Complainant in his citation item was performed by theRespondent.? Lastly, the means ofabatement suggested by Complainant in this citation item (reproduced above)were all performed by Respondent:? (1)personnel stood clear of the suspended load as it was being moved into itsfinal position, and it was not until it was 1-2 feet above the ground that anemployee, standing 2 feet away from the load, would align the load by hand; (2)Respondent trained its employees to keep body parts away from between the slingand the load, or ?kill zones?; (3) the sling?s legs contained and supported theload so that it remained under control?only when the load itself crumbled dueto a defect did the load slip, and even then the slings kept the cryptelevated; and (4) crypts with observable manufacturer flaws were rejected byeither the VA or Respondent.? Not onlydid Complainant fail to prove that Respondent?s measures were inadequate, heidentified abatement measures that were, for the most part, already beingimplemented.? At trial,fully aware that the Respondent had implemented all the methods of abatementsuggested by the Complainant, the Complainant attempted to propose ?new?alternative methods of abatement, such as tag lines, a rigid 15-foot long pole,or a template, which were not identified in the citation item.[23]? With respect to these ?new? alternativemethods of abatement, the Court notes that litigation is not a moving targetthat permits a party, in the face of strong countervailing evidence, tocontinually throw the proverbial dart until a theory of liability sticks.??? Notwithstanding, Complainant still failedto prove that these ?new? implements were feasible or an effective means toaddress the hazards associated with working on a suspended load.? In addition to the problem of how tag linesor a rigid pole could be attached to the load in order to align it, the primaryproblem was one of precision.?Complainant?s expert testified that using one?s hands would be a quickerway of accomplishing the task of alignment; however, he did not believe that ahands-on approach would be any more precise.?(Tr. 473).?The Court disagrees.? Mr. Peacocktestified that the crypts had to be placed precisely within a specified area ofinches or the whole row of crypts could be crooked, thereby disrupting theprecision required for the placement of thousands of crypts.? (Tr. 450, 474?75).? To that end, Mr. Peacock stated that it wouldbe near impossible to make the sort of minute adjustments necessary whenstanding 15 feet away from the crypt.? (Tr. 479?80).?Further, [redacted] stated that the use of a rigid pole would not bepractical because the loads were simply ?too heavy? to move with a pole.? (Tr. 287).? Mr. Harrell also testified that the use of arigid pole may result in a greater hazard.?If a crypt abruptly shifted with the pole resting on it, this couldresult in the pole being jammed back into the body of the holder of the pole.? (Tr. 607).? Complainant failed to prove that Respondent?smeasures were inadequate or that the measures it proposed were feasible andeffective.? The Courtfinds that Complainant failed to prove a violation of the general duty clausefor the reasons stated above .? Accordingly, Citation 1, Item 1 based upon analleged violation of the general duty clause will be VACATED. ?????? ?\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ii.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Training Violation[24]??????????? OnSeptember 11, 2012, Complainant filed a Motionfor Leave to Amend the Complaint and Citation, which was granted by theCourt.? Complainant requested leave toamend Citation 1, Item 1 to plead in the alternative a violation of 29 C.F.R. ?1926.21(b)(2).? The cited standardprovides:? The employer shall instruct each employee in therecognition and avoidance of unsafe conditions and the regulations applicableto his work environment to control or eliminate any hazards or other exposureto illness or injury.29 C.F.R. ?1926.21(b)(2).? ???????????????? ??????????? The cited standard requiresComplainant to prove that ?the cited employer failed to provide theinstructions that a reasonably prudent employer would have given in the samecircumstances.? ?El Paso Crane & Rigging Co., 16 BNAOSHC 1419, 1424 (No. 90-1106, 1993).??Thus, the obligation to train ?is dependent upon the specificconditions [at the worksite], whether those conditions create a hazard, andwhether the employer or its industry has recognized the hazard.??? CompassEnvironmental, Inc., 23 BNA OSHC 1132 (No. 06-1036, 2010) (citing W. G. Fairfield Co., 19 BNA OSHC 1233(No. 99-0344, 2000)).? When theRespondent produces evidence of training, then the burden shifts to theSecretary to show that training was inadequate or that the employee otherwisewas unable to recognize and avoid the hazards. N & N Contractors, Inc., 18 BNA OSHC 2121, 2126?27 (No. 96-0606,2000).??????????? The Court finds that the standardapplies; however, the Court does not find that the standard was violated.? Respondent had a training program in placethat addressed the specific hazards identified by Complainant.? As noted above, Respondent?s programidentified specific ?kill zones? wherein employees could be stuck or crushed bysuspended loads, as well as the specific locations where it was proper to placeone?s hands or feet during the alignment of the crypts.? Each of these instructions was specificallytailored to the concerns highlighted by Complainant in this citation item.? This program was reiterated to its employeesthrough initial training and tail gate meetings, wherein employees had to signin and indicate that they were present and had received the information.? (Tr. 274, 441?42, 495, Ex.R-4, R-5, R-6).? ??????????? Complainant contends thatRespondent?s training program was inadequate on two separate bases:? (1) its employees were exposed to hazardswhen they were working in close proximity to suspended loads; and (2)[redacted] could not recall the specifics of his training, which indicates thatRespondent?s training program was not sufficiently specific so as to beremembered.? See Pressure Concrete, 15 BNA OSHC 2011, 2017 (No. 90-2668, 1992)(?A reasonably prudent employer would attempt to give instructions that areunderstood and remembered by its employees, and would make at least some effortto assure that the employees did, in fact, understand the instructions.?).? As to (1), the Court has already addressedhow Respondent addressed the hazards associated with working on suspended loadsin its discussion regarding the general duty clause and concluded thatRespondent?s employees were not exposed to a hazard.? With respect to (2), the Court finds that,although it is important to ensure that current employees both understand andremember the instructions given by their employer, by the time of trial,[redacted] had not worked for Respondent for almost a year-and-a-half.? (Tr. 226).? It is understandable that he may not recallspecifics about the training that he received or that which he provided as a foreman.? That said, even though he was not able torecall specific terminology or instructions, he was able to generally recallcertain prohibitions that were put in place by Respondent, such as not pullingon the cables, not getting between crypts, watching your feet, and the distancehe was supposed to stay away from the suspended crypt.? (Tr. 287?89).? The general principles enunciated by[redacted] reflect that Respondent provided adequate training to itsemployees.? [redacted]?s inability torecall specific terminology, such as ?kill zone?, or the particular discussionsthat were had at tailgate meetings or even his initial orientation is notindicative of faulty training; rather, it is to be expected considering that ithad been over a year-and-a-half since he had worked for Respondent and, thus,he had no need to recall such terms or implement the training provided. ??????????? Based on the foregoing, the Courtfinds that Complainant failed to prove a violation of the general duty clause,or, in the alternative, a violation of 29 C.F.R. ? 1926.21(b)(2).? Accordingly, Citation 1, Item 1 will beVACATED.B.\u00a0\u00a0\u00a0\u00a0\u00a0 Citation 1, Item 3??????????? Complainant alleged a seriousviolation of the Act in Citation 1, Item 3 as follows:29 C.F.R. 1926.251(a)(4):? Special custom design lifting accessories formaterial handling were not marked to indicate the safe working loads and werenot proof tested prior to use to 125 percent of their rated load(s):a)\u00a0\u00a0\u00a0\u00a0\u00a0 Miramar NationalCemetery:? On or about 24MAY11, an LBXLink-Belt 225 Excavator, SN ECAJ8-3866, was equipped with un-tested andun-marked custom lifting accessory used to lift and transport concrete burialvaults weighing 8,472 pounds.b)\u00a0\u00a0\u00a0\u00a0\u00a0 Miramar National Cemetery ?On or about 24MAY11, a SkyTrak 10054 rough terrainfork lift, SN 0160003864, was equipped with un-tested and un-marked customlifting accessory used to lift and transport concrete burial vaults weighing8,472 pounds.? ??????????? The cited standard provides: Special custom design grabs,hooks, clamps, or other lifting accessories, for such units as modular panels,prefabricated structures and similar materials, shall be marked to indicate thesafe working loads and shall be proof-tested prior to use to 125 percent oftheir rated load.29 C.F.R. ?1926.251(a)(4). ??????????? By its terms, the cited standardapplies to custom design lifting accessories for material handling.? Id.? Mr. Peacock, president of Respondent,designed the custom lifting accessories that were attached to both the forkliftand excavator.? (Jt. Ex. 1).? Thus, the standard applies.? The Court also finds that the standard wasviolated.? First, thestandard requires that all special custom design lifting accessories ?shall bemarked to indicate the safe working loads . . . .?? Id.? Respondent does not dispute the fact that thelifting accessory designed by Mr. Peacock was not marked.? Rather, Respondent contends that ? 1926.251(a)(4) is ?one of those standards in which there is nopresumption a hazard exists when its terms are not met.?? (Resp?tBr. at 26).? In support of thisargument, Respondent cites to Anoplate Corp., 12BNA OSHC 1678 (80-4109, 1986), wherein the Commission held that 29 C.F.R. ?1910.94(d)(9)(v) required the Secretary to prove a significantrisk of harm.? The Commission imposedsuch a burden on the Secretary because the requirement to wear eye protectionwas prefaced by the phrase ?whenever there is a danger of splashing . . . .???? 29 C.F.R. ? 1910.94(d)(9)(v).? By using such a phrase in promulgating theregulation, the Secretary left it to the Commission to determine whether therewas a significant risk of harm on a case-by-case basis.? Anoplate, 12 BNA OSHC 1678.?In other words, the standard in Anoplate did not presume a hazard when its terms were notmet because the requirement to wear eye protection was conditioned by thepresence of a splashing hazard.? Id.?The standard cited in this case, however, presumes that there is asignificant risk of harm associated with the failure to mark equipment andproof test it to 125% of its rated load.?There is no precedent condition that activates the requirement to tagand test custom lifting accessories, there is only a mandate that such actionsshall be taken.? Although Respondent istechnically correct that the failure to mark the equipment does not render itsuse presumptively hazardous, the standard is intended to prevent the hazard ofoverloading equipment and accessories.?Thus, with respect to the first requirement?marking the load capacity oncustom lifting accessories?Respondent violated the standard.??????????? Respondent also violated the secondpart of the standard.? In addition tomarking the safe capacity of the custom lifting accessories, Respondent is alsorequired to proof test the accessories to 125 percent of their ratedloads.? Respondent?s failure to comply istwo-fold:? (1) It is unclear thatRespondent was aware of what the rated load of the accessories were; and (2)Respondent failed to conduct a proof test up 125 percent of the accessories?rated loads.? According to thedefinitions found in 29 C.F.R. ? 1910.184(b), which address the use of slingsand material handling equipment in general industry, a proof test is ?anondestructive tension test performed by the sling manufacturer or anequivalent entity to verify construction and workmanship of a sling.?? SeeSimpson, Gumpertz & HegerInc., 15 BNA OSHC 1851 (No. 89-1300, 1992) (reiterating the generalprinciple that standardscontaining broad or undefined terms may be given meaning by reference to other standards).? First, in order to conduct a proof test,Respondent must be aware of the rated load of the custom accessory.? The only evidence introduced by Respondentthat would indicate knowledge of the rated load was Mr. Peacock?s and Mr.Harrell?s testimony regarding the capacity of the slings to carry the load,which they estimated to be 7.8 tons.? (Tr. 510?11, 598?99).?This rating, however, does not take into account the angle of loading,which, as discussed above in Section V, reduces the load capacity of theslings.? Nor, in the case of the forkliftattachment, does it account for the use of an eye bolt that was welded onto theattachment instead of bolting it to the attachment using the threads.? According to Mr. Nelson,the ?most concerning feature of [the design of a load transferring member] isalways the connection.?? (Tr. 371).? Mr. Nelsonopined that there are many factors that have to be considered when evaluatingthe integrity of the weld, including geometry, configuration, and metallurgy ofthe weld.? (Tr. 372).? Neither Mr. Peacock nor Mr. Harrell was ableto provide concrete information about these critical factors that would impactthe load capacity of the custom attachment; Mr. Peacock could not even testifyas to what the rated load capacity of the attachments was.? (Tr. 508?509).? Without knowledge of the rated capacity ofthe custom attachment, Respondent could not have performed a proof test of 125percent of the rated load.? Even if theCourt were to assume that the rated load of the custom accessory was known,Respondent failed to conduct an adequate proof test of the accessory.? Mr. Peacock testified that a test wasperformed on the equipment approximately one month prior to the beginning ofthe Miramar project.? (Tr.507).? This test involved placinga crypt loaded with a couple of cubic yards of dirt, weighing roughly 3 tons,on top of another crypt.? (Tr. 456).? This meansthat the load carried by the attachment was roughly 14,000 pounds.? (Ex. C-28).? By Respondent?s own admission, however, thistest was not performed for the purposes of testing the custom liftingattachment; rather, the test was performed to test the structural integrity ofthe crypt lids.? (Tr.508).? Mr. Peacock also testifiedthat these tests were performed with the attachment provided by themanufacturer, which means that the devices that were actually used during thecrypt installation process were not tested.?(Tr. 533?34).?Based on the foregoing, the Court finds that the terms of the standardwere violated. The Courtalso finds that Respondent?s employees had access to the cited condition.? [redacted] and otheremployees worked in close proximity to the suspended loads during the finalinstallation process.? The failure toproof test and mark the custom lifting accessories on the forklift andexcavator exposed Respondent?s employees, including the ground person andequipment operator, to potential crushing and struck-by injuries, becauseemployees could potentially misjudge the safe lifting capacity of the liftingdevices and overload the equipment, which could lead to failure of the liftingdevice.? Respondentalso knew or could have known of the violative condition.? Mr. Peacock, president of Respondent, wasresponsible for the design and creation of the custom lifting accessories onboth the forklift and the excavator.? Mr.Peacock also testified that he was aware that the custom devices were notmarked to indicate their safe working loads.?(Tr. 502).?Finally, Mr. Peacock also testified that the test performed on thecrypts was actually done with the attachment provided by the cryptmanufacturer, which means that, even if the test was a legitimate means ofdetermining 125% of the attachment?s rated capacity, the test was not performedwith the equipment indicated in this citation item.? Respondent was directly aware of violativecondition.[25]? Theviolation was also serious.? CSHO Mollenberndt testified without dispute that, if an accidentoccurred, there was a substantial probability that death or serious physicalharm could result if an accident occurred.?(Tr. 126?27).?As noted above, the custom lifting accessory could be overloaded andfail, which would expose employees to crushing injuries as well as thepossibility of being struck by the suspended 8,472-pound crypt while working inthe vicinity of the forklift or excavator.?Accordingly, Citation 1, Item 3 will be AFFIRMED.?? ??????????? Citation1, Item 5Complainant alleged a serious violation of the Act inCitation 1, Item 5 as follows:29 C.F.R. 1926.602(c)(1)(ii):? Modifications or additions which affect thecapacity or safe operation of the equipment were made without themanufacturer?s written approval:a)\u00a0\u00a0\u00a0\u00a0\u00a0 Miramar National Cemetery ?On or about 24MAY11, a SkyTrak 10054 rough terrainforklift, SN 0160003864, removed the manufacturer forks, and added an employercrafted, custom attachment on the end of the boom without approval of themanufacturer. ??????????? Thecited standard provides: No modifications or additions which affect thecapacity or safe operation of the equipment shall be made without themanufacturer’s written approval. If such modifications or changes are made, thecapacity, operation, and maintenance instruction plates, tags, or decals shallbe changed accordingly. In no case shall the original safety factor of theequipment be reduced29 C.F.R. ?1926.602(c)(1)(ii).???????????? According to 29 C.F.R. ?1926.602(a), the rules contained therein apply to earthmoving equipment, suchas ?scrapers, loaders, crawler or wheel tractors, bulldozers, off-highwaytrucks, graders, agricultural and industrial tractors, and similarequipment.?? More specifically,subsection (c) applies to lifting and hauling equipment.? See 29 C.F.R. 1926.602(c).?The forklift clearly falls under the rubric of lifting and haulingequipment.? Accordingly, the standardapplies. ??????????? In order to prove that that theterms of the standard were violated, Complainant must establish:? (1) there was an addition or modification tothe forklift, (2) that affected the forklift?s capacity or safe operation, and(3) Respondent failed to procure the manufacturer?s written approval.? See id.? 1926.602(c)(1)(ii).?First, Respondent admitted that it did not receive the manufacturer?sapproval to make modifications to the forklift.?(Tr. 513).?Second, the Court finds, at the very least, there was an addition to theforklift to the extent that Respondent created a custom lifting accessory thatwas connected to the boom by means of a custom attachment.? (Ex. C-13, C-14).? In other words, because the attachment itselfwas not made by the manufacturer, Respondent was required to craft a connectionpoint to attach the custom lifting assembly to the boom of the forklift. ?Thus, the sole operative question for theresolution of this citation item is whether the capacity or the safe operationof the forklift was affected by the addition.?The Complainant has the burden of proof to present credible objectiveand verifiable evidence that either the capacity or the safe operation of theforklift was affected in order for it to prevail.? ??????????? Complainant contends that thestandard was violated because the anchorage point of the forklift was altered,which resulted in the forklift lifting the crypts from above the load insteadof from below it.? (Tr.126, 160).? Additionally,Complainant?s expert, Mr. Nelson, was most concerned about the stability of theweld, which was main point of connection between the custom lifting device andthe boom of the forklift.? (Tr. 371?72, 431).?Respondent argues that the equipment never failed and that the removalof the fork attachment to the forklift actually increased its capacity from10,000 pounds to 29,805 pounds.[26]? Respondent?s expert testified that the use ofa custom attachment did not alter the capacity of the forklift itself, nor didthe attachment render the use of the forklift unsafe as evidenced by thethousands of times it had been used prior to the inspection without incident.? (Tr. 583?86).??????????? First, the Court does not find thatthe removal of the forks changed the capacity of the forklift from 10,000pounds to 29,805 pounds as contended by the Respondent.? The terms ?Maximum Capacity? and ?MaximumWeight Without Attachments? that are used in ExhibitC-19 should be given their common sense meaning.? As such, the Court finds that the both termsdo not refer to the same thing, i.e., different load carrying maximums; rather,the former refers to the forklift?s capacity to lift and the latter refers tohow much the forklift weighs without anything attached to it.? According to Exhibit C-19, the maximumcapacity for the forklift was 10,000 pounds as designed by the manufacturer.? (Tr. 373).? Thus, any changes made to the forklift thataltered its capacity needed to be approved by the manufacturer.? It isinteresting to note, however, that neither party discussed the asterisk on themanufacturer?s plate, which states ?Refer to load capacity chart for truck withattachment and individual load ratings stamped on forks, if equipped.? Use lowest capacity of all ratings.?? (Ex. C-19).? What this suggests is that the capacity ofthe forklift is dependent upon the attachments used and, as noted by Mr.Harrell, the extension of the telescoping lift, but, in any case, the capacityof the machine maxes out at 10,000 pounds.?(Tr. 580, 582).?Complainant introduced the load capacity chart for the excavator, whichtakes into account different attachments and the extension of the boom atvarious lengths and heights; however, thechart specifically mentioned on theforklift was not introduced as evidence, which deprives the Court of theopportunity to determine what the capacity of the forklift is when taking intoaccount different variables like the attachments used and extension of theboom.[27]? Further, the failure to introduce the loadchart or operator?s manual for the forklift also deprives the Court of theability to ascertain whether this particular machine is designed for overheadlifting.? Ultimately,it is unclear that the load capacity of the forklift itself was affected by thecustom attachment.? Complainant?s expertfocused almost entirely upon the design of the custom lifting attachment andthe weld that connected the attachment to the boom.? Specifically, he testified about the numberof ways in which the weld could failand the impact of dynamic, lateral loading which could cause the welded attachment to separate ?at any giventime.?? (Tr. 374, Compl?tBr. at 20).? The problem, however, isthat these concerns are all directed towards the load capacity of the customattachment and weld, not the capacity of the forklift itself.[28]? (Tr. 371).? As noted above, the operative question inthis case is whether the load capacity ofthe forklift has been affected by virtue of the modification oraddition.? Merely because the structuralintegrity of the custom attachment is in question does not mean that thecapacity of the forklift has been affected.?Complainant?s witnesses opined that the capacity of the forklift could have been affected by the additionof the custom attachment; however, Complainant was unable to show that it was, in fact, affected.? Thequestion of capacity, however, does not resolve the issue.? The standard also states that modificationsor additions that affect the safeoperation of the vehicle must also be approved by the manufacturer.? Complainant?s arguments with respect to thesafe operation of the forklift are speculative at best.? Mr. Nelson?s testimony was, for the mostpart, couched in hypotheticals about what couldhappen if the weld were to breakin a certain way; however, none of those hypotheticals actually addressedidentifiable deficiencies in the welded portion of the custom attachment.? This is due to the fact that Mr. Nelson didnot physically examine the attachment or weld, but instead based his opinion onpictures of the attachment and weld.? Theonly concrete evidence introduced by Complainant that addressed the safeoperation of the forklift was the video, which showed the crypt swaying as itwas being hauled by the forklift.? (Ex. C-12).? Mr.Nelson testified that the swaying motion of the crypt imparted dynamic, lateralstress on the weld, which, if it failed, could strike employees in the vicinityof the load, including the operator of the forklift.? (Tr. 374, Ex. C-12).? Respondent?s expert, Mr. Harrell, on theother hand, noted that the forklift, although operating on uneven ground whilehauling a dynamic load, was still able to remain stable with all wheels firmlyon the ground.? (Tr.586).? Though he could not testifyas to the integrity of the welded attachment, Mr. Harrell also noted that thedesign of the rough terrain forklift accounts for uneven terrain and dynamicloads.? (Tr. 586).? Specifically, Mr. Harrell pointed to thefront tires and outriggers, which serve to protect the operator from swingingloads.? (Tr. 586?87).? Although the Court appreciates Mr. Nelson?sconcerns regarding the potential for a weld to fail, the same concerns could beexpressed with respect to any welded attachment.? Though the purpose of the Act is to preventthe first accident, the Court cannot disregard the fact that this same set-uphas been used thousands of times without incident.? Even the accident that precipitated theinspection at issue was not the product of Respondent?s faulty equipment;rather, it was the result of a poorly manufactured crypt, which was not anaspect that Respondent could control.?The Court gives little weight to the testimony of Mr. Nelson on theissues of capacity or safe operation since his conclusions are eitherspeculative or based on unexamined or untested assumptions about the integrityof the weld. This Court cannot permit the Complainant to meet his burden ofproof with conclusions based on speculation.?To do so would undermine the integrity of longstanding case law thatplaces the burden on him to prove a violation of the Act.? Complainant failed to present credible,objective, factual evidence that established the custom attachment affected thecapacity of the forklift or rendered it unsafe to operate for the reasonsstated above.? Accordingly, Citation 1,Item 5 will be VACATED.???? C.\u00a0\u00a0\u00a0\u00a0\u00a0Citation 1, Item 6Complainant alleged a serious violation of the Act inCitation 1, Item 6 as follows:29 C.F.R. 1926.701(b):?All protruding reinforcing steel, onto and\/or into which employees couldfall or come against, was not guarded to eliminate the hazard of impalement: a)\u00a0\u00a0\u00a0\u00a0\u00a0 Miramar National Cemetery ?On or about 20MAY11, steel reinforcing rods were not capped against impalement.?????? b)\u00a0\u00a0\u00a0\u00a0\u00a0 Miramar National Cemetery ?On or about 24MAY11, steel reinforcing rods were not capped against impalement.The cited standard provides: Reinforcing steel. Allprotruding reinforcing steel, onto and into which employees could fall, shallbe guarded to eliminate the hazard of impalement.29 C.F.R. ? 1926.701(b).???????????? On the first day of CSHO Mollenberndt?s inspection of the worksite, he noticed severaluncapped steel reinforcing rods that had been pounded into the ground to aid inthe alignment of the burial crypts.? (Tr. 59).? On May 20,2011, Respondent?s foreman, Tyler Felton, advised CSHO Mollenberndtthat he knew the rods should be capped and that he would ensure that the rodswould be capped in the future.? (Tr.67?68).? When CSHO Mollenberndtarrived at the worksite a couple of days later on May 24, 2011, he observedthat many of the rods remained uncapped.?(Tr. 68).?There were approximately 8??12 rods that stood 1?4 feet out of theground, and, depending on the location of the crypts, located adjacent to orroughly 6 feet away from the crypts.? (Tr. 60, Ex. C-4).? Atthe time of the inspection, CSHO Mollenberndtobserved employees working in close proximity to the uncapped rods, includingsome employees that were standing on top of the crypts.? (Tr. 61, Ex. C-4). ??????????? Respondent contends that the citedstandard is inapplicable and the citation should be vacated.? Specifically, Respondent points to the scopeand application paragraph of 29 C.F.R. ? 1926.700(a), which states: This subpart sets forthrequirements to protect all construction employees from the hazards associatedwith concrete and masonry construction operations performed in workplacescovered under 29 CFR Part 1926.? Inaddition to the requirements in Subpart Q, other relevant provisions in Parts1910 and 1926 apply to concrete and masonry construction operations.29 C.F.R. ? 1926.700(a).?Respondent admits to using ?protruding reinforcing steel?, as that termis used in ? 1926.701(b); however, Respondent argues that the standard does notapply because Respondent was not engaged in concrete or masonryoperations.? Complainant contends thatbecause Respondent was using reinforced steel rods that protruded from theground, the standard applies.? Respondentmay not have been performing concrete or masonry operations per se; however, it was utilizingtools\/implements?rebar?associated with that specific industry.? SeeKunz Constr. Co., 15 BNA OSHC 1343 (No. 90-2995-S, 1991) (ALJ Schwartz)(finding a violation of 1926.701(b) when uncapped, reinforcing steel rods wereused to ?stake out the drive to the company trailer?).? It is undisputed that the reinforcing steelrods were uncapped and protruding out of the ground.? Thus, the standard applies and wasviolated.? One of thehazards associated with the use of uncapped, reinforced steel rods is thepotential for impalement, which was present at Respondent?s worksite.? CSHO Mollenberndtobserved an employee working on top of the crypts, approximately 5 feet off ofthe ground, near an uncapped steel rod.? (Tr. 61, Ex. C-4).?Additionally, other employees of Respondent were exposed to theimpalement hazard when they worked on the ground in close proximity to uncappedrods.? (Tr. 65?67).? Accordingly, the Court finds thatRespondent?s employees were exposed to the hazard. Finally,Respondent knew or should have known about the presence of the violativecondition.? As noted above, Respondent?sforeman, Mr. Felton, indicated that he was both aware of the requirement andthat he would resolve the problem of the missing caps, which were identified byCSHO Mollenberndt on the first day of hisinspection.? When CSHO Mollenberndt returned a few days later, he observed moreuncapped steel rods.? Not only was thecondition open and obvious, but Respondent?s foreman was directly aware of theuncapped rods and allowed the condition to exist.? It is well-settled that the actual orconstructive knowledge of a foreman can be imputed to his employer.? Rawson Contractors Inc.,20 BNA OSHC 1078 (No. 99-0018, 2003); A.P. O’HoroCo., 14 BNA OSHC 2004 (No. 85-369, 1991).? Mr. Felton held himself out as arepresentative of Respondent, and, therefore, his knowledge of the uncappedreinforced steel is properly imputed to Respondent.? Theviolation was also serious.? Sufficienttestimony was presented by Complainant to establish that falling ontoreinforced steel rods creates an impalement hazard, which could lead to seriousinjuries and even death.? Based on theforegoing, the Court finds that Complainant established a violation of thestandard.? Accordingly, Citation 1, Item6 will be AFFIRMED.VIII.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0PENALTY???????? Incalculating appropriate penalties for affirmed violations, Section 17(j) of theAct requires the Commission give due consideration to four criteria: ?(1) the size of the employer?s business, (2) thegravity of the violation, (3) the good faith of the employer, and (4) theemployer?s prior history of violations. ?Gravityis the primary consideration and is determined by the number of employeesexposed, the duration of the exposure, the precautions taken against injury,and the likelihood of an actual injury. J.A. JonesConstruction Co., 15 BNA OSHC 2201 (No. 87-2059, 1993).? It is well established that the Commissionand its judges conduct de novopenalty determinations and have full discretion to assess penalties based onthe facts of each case and the applicable statutory criteria.? Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239,1995); Allied Structural Steel, 2 BNAOSHC 1457 (No. 1681, 1975).CSHO Mollenbernt provided credible testimony to support hischaracterization of the size of Respondent?s business, the gravity of theviolation, good faith, and prior history of violations.? With respect to Citation 1, Item 3, the Courtfinds that the gravity associated with using an improperly tested, customlifting device is high?if the device is not sufficiently tested and marked, itis possible for an employee to overload the equipment and expose himself andother employees to the potential for crushing injuries from the 8,000-pluspound crypts.? Accordingly, the Courtfinds that a penalty of $3,000 is appropriate. With respect to Citation 1, Item6, the Court finds that CSHO Mollenberndt overstatedthe gravity of the violation.? For themost part, employees were exposed to the hazard while walking on the ground,which reduced the likelihood that an employee would trip and fall onto theprotruding rebar.? Further, when standingon top of the crypts, most of the rebar was approximately 6 feet away, which further reduced the likelihood of an impalement injury.? In light of these facts, the Court finds thata penalty of $2,000 is appropriate.? ORDER??????????? The foregoing Decision constitutesthe Findings of Fact and Conclusions of Law in accordance with Rule 52(a) ofthe Federal Rules of Civil Procedure.?Based upon the foregoing Findings of Fact and Conclusions of Law, it isORDERED that:1.\u00a0\u00a0\u00a0\u00a0\u00a0 Citation 1,Item 1(as originally plead and as an alternative amended citation) and itsassociated penalty are hereby VACATED.2.\u00a0\u00a0\u00a0\u00a0\u00a0 Citation 1,Items 2(a) and 2(b) are AFFIRMED as other-than-serious and a penalty of $900 isASSESSED.3.\u00a0\u00a0\u00a0\u00a0\u00a0 Citation 1,Item 3 is AFFIRMED and a penalty of $3000 is ASSESSED.4.\u00a0\u00a0\u00a0\u00a0\u00a0 Citation 1,Item 4 is AFFIRMED as other-than-serious and a penalty of $900 is ASSESSED.5.\u00a0\u00a0\u00a0\u00a0\u00a0 Citation 1,Item 5 and its associated penalty are hereby VACATED.6.\u00a0\u00a0\u00a0\u00a0\u00a0 Citation 1,Item 6 is AFFIRMED and a penalty of $2000 is ASSESSED.\u00a0\u00a0Date:?? April 17, 2013???????????????????????????????????????????????? \/s\/??????????????????????????????????????????? Denver, Colorado??????????????????????????????????????????????????????? PatrickB. Augustine??????????????????????????????????????????????????????????????????????????????????? Judge,OSHRC\u00a0\u00a0[1] Although California has a state plan approved by theOccupational Safety and Health Administration, it does not cover ?nationalmemorials.?? 29 C.F.R.?\u00a01952.7 (explaining California plan coverage).[2] The judge?s decision was issued in Docket No.11-2780, from which the citation item at issue here was severed in an orderissued today.? See Commission Rule 10, 29 C.F.R. ? 2200.10.? A decision in Docket No. 11-2780 has alsoissued today.[3] The Secretary does not dispute the judge?s conclusionthat the forklift modification did not affect the forklift?s capacity.[4] Section 1926.602 (?Material handling equipment?) iscontained in Subpart O??Motor Vehicles, Mechanized Equipment, and MarineOperations??of the Construction Standards.?Section 1926.602(c) covers ?[l]ifting andhauling equipment? not otherwise excluded.[5] The Joint Stipulation filed by the partiesstates, in pertinent part, that Peacock ?did not obtain written approval fromthe Forklift manufacturer for the modifications to the Forklift and its customlifting accessory.?[6] The judge dedicated a portion of his decision to theissue of whether ?the load capacity ofthe forklift has been affected by virtue of the modification or addition,?concluding that the Secretary ?was unable to show that [the capacity] was, in fact, affected.?? On review, the Secretary relies only on a?safe operation of the equipment,? 29 C.F.R. ? 1926.602(c)(1)(ii),theory of violation.[7] My colleaguereferences provisions in the crane standard as a basis for finding that theforklift modification?which she concludes made the forklift into acrane?affected its safe operation.\u00a0 I fail to see how the existence of thecrane standard can serve as a substitute for the Secretary establishing, as a factualmatter, that the modification of the forklift in this case affected itssafe operation.\u00a0 My colleague?s contention that the forklift modificationmade it a crane ?subject to the requirements of the crane standard? also begsthe question of whether the Secretary should have cited the employer for aviolation of the more specifically applicable crane standard (thus preemptingthe cited material handling equipment standard).?? See29 C.F.R. ? 1926.20(d)(1) \u00a0(?If aparticular standard is specifically applicable to a condition, practice, means,method, operation, or process, it shall prevail over any different generalstandard which might otherwise be applicable to the same condition, practice,means, method, operation, or process.?);\u00a0Brand Energy Sols. LLC, 25 BNA OSHC1386, 1389 (No. 09-1048, 2015) (finding preemption of cited provision bymore specifically applicable standard).?It appears that my colleague tries to avoid the preemption issue by claimingthat the crane standard?s modification provision applies only to themodification of cranes and that even if it?s true that the modification of theforklift turned what had been a forklift into a crane, the machine that wasmodified was (originally) a forklift, not a crane.? However, the crane standard, as my colleaguenotes, includes within its coverage forklifts that are ?configured to hoist andlower (by means of a winch or hook) and horizontally move a suspendedload.?? 29 C.F.R. ?1926.1400(9).? If a forklift isconfigured such that it is covered by the crane standard, presumably themodification requirements of that standard would be more specificallyapplicable than the modification requirements of the material handlingequipment standard.? See 29 C.F.R. ? 1926.1434(a) (?[m]odificationsor additions which affect the capacity or safe operation of the equipment are[with certain exceptions] prohibited?).?In theory, the Secretary could have then also cited the crane operationprovisions, such as the rotational speed provision.? See29 C.F.R. 1926.1417(v) (?[r]otational speed of theequipment must be such that the load does not swing out beyond the radius atwhich it can be controlled?).? However,in my view, the Secretary cannot (even if he had made this argument) use onestandard for proof of a hazard for another cited standard while convenientlyducking the question of whether the standard he chose to cite is the morespecifically applicable one.? Moreover,this is yet another theory that the Secretary has not raised and the companyhas had no opportunity to address. Thus, since neither of the parties thoughtof the forklift as a crane, it is unreasonable for my colleague to suggest thatPeacock waived any affirmative defense of preemption by not raising it.[8] My colleague suggests that she need not defer to thejudge?s findings because he did not state his credibility determinations asdemeanor-based.? However, demeanor is butone of the factors in assessing the credibility of a witness, and despite herattempts to side-step the issue, it remains true that the longstandingCommission precedent is to normally defer to a judge?s credibilityevaluations.? See C. Kaufman, Inc., 6 BNA OSHC 1295, 1297 (No. 14249, 1978)(Commission?s policy is to ordinarily accept a judge?s credibility evaluationof witnesses because he has lived with the case, heard the witnesses, andobserved their demeanor); P. Gioioso & Sons, Inc., 6 BNA OSHC 1617, 1618(No. 16215, 1978) (adopting judge?s findings and conclusions where they werereached ?after observing the demeanor of the witnesses, evaluating theircredibility[,] and weighing the evidence accordingly?).? While the Commission does have ultimateresponsibility for the findings entered, I see no basis here to stray from thedeference typically provided, as the judge made careful and impartialcredibility findings in light of the entire record and explained his reasonsfor crediting one witness over another.? Compare Kaufman, 6 BNA OSHC at 1297 (declining to defer to judge?scredibility determinations where he did not comply with AdministrativeProcedure Act?s requirements of mentioning and resolving conflicting witnesstestimony); Asplundh Tree Expert Co.,6 BNA OSHC 1951, 1954 (No. 16162, 1978) (remand where judge failed to mentionrelevant witness testimony and did not make credibility determinations).[9] The Secretary?s testimony and briefs, both before thejudge and upon review, limit the issue of the safe operation of the forklift to the possibility for the weld failure.[10] In the limited cases where the Commission hasconsidered issues outside the four corners of the record, for the sake offairness, it has typically directed the new issue for review or soughtsupplemental briefing.? See DravoCorp., 10 BNA OSHC 1651,1652-53 n.2 (No. 14818, 1982) (after review directed, supplemental briefingorder issued specifying additional issues);\u00a0Farmers Coop. Grain& Supply Co.,\u00a010BNA OSHC 2086, 2087 (No. 79-1177, 1981) (issue directed for review was whetherjudge erred in vacating section 5(a)(1) citation; Commission raised issue ofpotential applicability of certain standards and later amended citation toallege violation of standard); TidewaterPac., Inc., 17 BNA OSHC 1920, 1921 (No. 93-2529, 1997) (Commissionrequested supplemental briefing on legal issue not raised by parties), rev?d in part on other grounds, 160 F.3d 1239(9th Cir. 1998).? Cf.\u00a0John T. Brady & Co.,\u00a010 BNA OSHC 1385, 1386 (No. 76-2894,1982) (deciding case on grounds other than those included in direction forreview, but only because controlling precedent was issued after direction forreview).[11] The OSHA compliance officer estimated this as thedistance between where the crypts were delivered and where they were beinginstalled.[12] Peacock?s expert testifiedthat the forklift operator was not endangered because the swinging load ?wouldactually hit the front part?the tires and where the front outriggers are andwould not enter the cab or cause any damage to the cab or the operator.?? Being directly struck by the swinging load,however, is not the only way the operator could be injured.[13] As to my colleague?s purported deference to thejudge?s supposed ?credibility determinations and factual findings? related tothe experts, I note that the judge made no demeanor-based credibility findingto which the Commission need defer.?Unlike the cases my colleague cites, which deal with credibilitydeterminations involving fact witnesses, the judge here simply weighed theopinions of the competing experts, and ?we are in as good a position as thejudge to evaluate the qualifications of the experts and weigh their testimonyin light of the other evidence of record.??All PurposeCrane, Inc., 13 BNA OSHC 1236, 1239 (No. 82-0284, 1987).[14] I disagree with my colleague?s suggestion that thecrane standard may be more specifically applicable and thus preemptsthe forklift modification provision.?Apart from the fact that preemption is an affirmative defense that wasnot raised by Peacock, see Spirit Aerosystems, Inc., 25 BNA OSHC 1093, 1097 n.7 (No.10-1697, 2014) (?Under Commission precedent, preemption by a more specificallyapplicable standard is an affirmative defense which the respondent must raisein its answer.?), the crane standard does not apply to the process of modifyinga forklift.? The provisions I referencein the crane standard are reflective of the fact that there are hazardsassociated with traveling with a suspended load, but those provisions do notapply until a machine is a cranewithin the meaning of that standard.? See 29 C.F.R. ? 1926.1400.? In situations where thecited standard requires the forklift manufacturer?s approval of themodification, that approval is required as a precondition to the forklift?s modification?that is (as in thiscase), before it is used as a crane.[15].? Citation 1, Item 2 includes sub-items 2a and2b, which explains the discrepancy between the parties? Stipulation No. 23 andthe Court?s count of the number of alleged violations.? On the first day of trial, the parties wereable to settle Citation 1, Item 2a, Item 2b, and Item 4.? That agreement was read into the record andis discussed below in Section IV.? ?[16].? This section does not constitute the entiretyof the Court?s Findings of Fact.? Thefacts contained in this section apply generally to each of the citationsdiscussed in Section VII, Conclusions of Law.?To the extent that additional facts are needed to address a particularcitation, such facts will be discussed in Section VII.? [17].? ?Angleof loading is the inclination of a leg or branch of a sling measured fromthe horizontal or vertical plane as shown in Fig. N-184-5; provided that theangle of loading of five degrees or less from the vertical may be considered avertical angle of loading.? 29 C.F.R. ? 1910.184(b).??[18].? Respondent?s expert, Robert Harrell, who is asafety and health consultant but conceded he is not a professional engineer,testified that you only have a reduction in capacity ?when you incline the twoends of a single sling in towards the center [of the load] and you get them offof vertical.?? (Tr.647).? Further, Mr. Harrell statedthat if you did not have a spreader bar and hooked the slings directly to thehook on the attachment, such an angle would impact thecapacity of the slings.? (Tr. 648).? The Courtfails to see a meaningful distinction?in either case the slings would beoriented at an angle, which, as testified to by Mr. Nelson, impacts the tensilestrength of the sling.?? [19].? The accident occurred when the sling wasunder full load.? While a latent defectin the crypt cement caused the sling?s anchor point on the corner to crumble,the crypt never crashed to the ground but was held above the ground in asuspended fashion.? (Tr.604).[20].? By saying this, however, the Court does notfind that Respondent has established the defense of unpreventable employeemisconduct.? In light of the conclusionreached later that the Complainant has not carried his burden to establish a prima facie case of a violation of theGeneral Duty Clause, it is unnecessary for the Court to address thataffirmative defense. ?[21].? The Court is aware that the primary purposeof the Act is to prevent the first accident; however, as it regards thecapacity of the slings to carry their intended load, the repeated use of thisparticular sling set-up is relevant to the question of whether the slingcapacity was adequate.? The incidentinvolving [redacted] was the result of a faulty crypt and not the inability ofthe slings to carry the load.[22].? It is also worth noting that when [redacted]was injured, the sling slipped from the groove; however, it did not completelydisengage and remained suspended by the lifting device.? (Tr. 605). ?[23].? Mr. Nelson made a passing suggestion thatRespondent could use a template, which would obviate the need to manipulate thecrypts by hand; however, there was scant discussion of the feasibility of sucha measure. ?See ACME Energy Svcs. dba Big Dog Drilling,23 BNA OSHC 2121 (No. 08-0088, 2012) (?The Secretary has the burden of ?demonstrat[ing] both that the [proposed abatement] measures arecapable of being put into effect and that they would be effective in materiallyreducing the incidence of the hazard.?? (quoting Beverly Enters., 19 BNA OSHC 1161 (No. 91-3344, 2000))).? [24].? Since the two alternative theories rest, inlarge part, on the same set of facts and conclusions, the Court incorporates byreference its findings of fact and conclusions of law from Section VII.A.i. [25].? Alternatively, the Court also finds thatRespondent had constructive knowledge of the condition through its foreman,Tyler Felton.? The custom liftingaccessories on the forklift and excavator, which were operated by Mr. Felton,were in plain view and were repeatedly used to move crypts throughout theworking day.? The knowledge ofRespondent?s foreman, Mr. Felton, is properly imputed to Respondent.? RevoliConst. Co., 19 BNA OSHC1682 (No. 00-0315, 2001) (holding that actions and knowledge of supervisorypersonnel are generally imputed to their employers).? [26].? The Court sincerely doubts that a manufacturerof lifting equipment would equip a machine with attachments that reduce thelifting capacity by close to two-thirds of its maximum.? [27].? According to Mr. Harrell, the load chart forthe forklift would be located inside the cab of the forklift next to where theoperator sits and operates the equipment.??[28].? The load capacity of the custom attachmentwas already addressed by Complainant in Citation 1, Item 3. It is a muchdifferent issue to address the actual lifting capacity or safe operation of theforklift to which the custom accessory was attached.? In that regard, it is interesting to notethat the forklift was cited for a violation of 29 C.F.R. ? 1926.602(c)(1)(ii),and the excavator was not even though both vehicles were equipped with customattachments that may or may not have affected the capacity or safe operation ofthe vehicle.?? “