November 12, 2012
An independent contractor charged with three alleged violations of Mine Safety and Health Administration (MSHA) equipment standards has been found guilty by ALJ Margaret Miller on Oct.12, 2012, and the ALJ, in accordance with her frequent practice, also increased some of MSHA’s proposed penalties.
The Boart Longyear Co. was performing drilling services at a gold mine in Nevada, and is considered to be a “mine operator” under the definitions in the Mine Act. The three citations and orders at issue were all related to Boart Longyear’s drill rig.
The first Section 104(d)(2) order was issued for an alleged violation of 56.14100(c), but the Secretary then moved to plead a violation of 56.14100(b) in the alternative, and the ALJ approved the request. The first-cited standard requires that defects affecting safety be corrected in a timely manner to prevent the creation of a hazard to persons. The alternative standard says that, when defects make continued operation hazardous, the defective items (equipment, machinery, and tools) shall be taken out of service and tagged or parked in a designated area posted for defective equipment, and that the operator must prohibit use of the items until the defects are corrected.
The order itself alleged that the brake lights on a flatbed pipe truck were not being maintained and that they failed to function when tested. The condition had been reported previously on the driver’s pre-use inspection. MSHA alleged that the driller-in-charge was aware of the problem but failed to tag the truck or remove it from service until it was repaired. The driller was charged with engaging in aggravated conduct for failing to take action concerning a known hazard. At the time of inspection, the truck was located in an area of the pit where other equipment were operating, including large 300-ton haul trucks. The order was characterized as reasonably likely to be fatal, with “high” negligence and a proposed penalty of $8,421.
The inspector acknowledged that he was told the lights had been repaired on two separate prior occasions before the citation was issued, but that the preshift book indicated they were not working on the day of inspection even though the truck continued to be operated. The inspector testified that, without functional brake lights, any vehicle following the flatbed would not be aware that it was stopping and could collide with it and result in a fatal accident.
The driller also testified at trial and said he had not done a preoperational inspection on the day in question and that he was not aware of the non-functioning brake light. He did confirm that there were prior problems with the brake lights and that he had personally replaced the entire tail light assembly less than a week earlier. Two days after that, when he did test the truck, the lights were again defective, and he again repaired them. Although the inspector had reviewed the preshift book at the initial inspection visit, the mine operator had destroyed it prior to litigation. The rig was scheduled to be moved out of the pit on the day of inspection, and the driller said that the truck would have been inspected before the truck was moved. He also disputed the gravity assigned to the citation, saying that there is normally a pilot car that follows the flatbed to provide support and that there were berms that separated the area where the flatbed was parked from the area where large haul trucks operate.
ALJ Miller took note of the discrepancies in testimony and found that the inspector was more credible, in part because he took notes which supported his testimony and memory, whereas the driller “responded yes or no” to leading questions from the company’s attorney. The judge also noted the absence of documentary evidence (the log books) and the lack of testimony from another miner who had operated the truck on a previous shift. The driller’s testimony also fluctuated on the issue of whether he had conducted a preoperational exam of the truck on the day of the inspection. Based on the inspector’s testimony, ALJ Miller affirmed a violation of 56.14100(b).
The ALJ did, however, find that, based on some misunderstanding about how long the brake light had been defective, the Secretary did not meet her burden of proving an “unwarrantable failure” for purposes of Section 104(d), but she still found Boart Longyear to have engaged in high negligence. The Secretary had already stipulated to modify the citation to non-S&S, but the judge found that the gravity warranted a higher penalty. She assessed an $8,000 penalty for this order.
The next citation involved an alleged violation of 56.11002, which requires crossovers, elevated walkways, ramps, and stairways to be provided with handrails maintained in good condition. The inspector alleged that there were no handrails on the drill platform to keep miners from falling off, and the platform was 59 1/2 inches from the ground. It is important to recognize that, after this citation was issued but before the judge’s ruling, MSHA issued a policy document saying that fall protection is only needed in most situations where the elevation is 6 feet or higher.
In the Boart Longyear case, the supervisor told the inspector that he had told management that railings were needed about 2 to 3 weeks before the inspection. Therefore, the citation was issued as an unwarrantable failure under Section 104(d)(1), reasonably likely to be fatal, with high negligence. MSHA specially assessed a proposed civil penalty of $20,900. At hearing, the Secretary again moved to plead in the alternative violation of 56.11027, which was granted, but the ALJ ruled on the originally cited standard.
A different inspector was involved with this citation, and the inspection had resulted from a complaint about the Boart Longyear drilling operation. He issued the handrail citation and a second concerning the rig, for allegedly not providing safe access as required under 56.11001 — also under Section 104(d)(1) — with another specially assessed penalty of $7,300.
When the contractor’s representatives testified, its witnesses indicated that, while they did not believe there was a need for a handrail, the issue had been discussed in the context of MSHA “unreasonably citing operators for the failure to have such rails,” and the parts had been ordered but not yet installed. They also testified that the drill rig, which had a non-skid steel deck, had been inspected previously by MSHA but had not been cited for the lack of handrails, creating a fair notice defense.
ALJ Miller found that the cited area was a walkway within the meaning of the cited standard, and that the lack of railings was a violation. She rejected the fair notice argument, noting that the rig is moved from mine to mine frequently, and there was no evidence that an inspector had observed the rig or noticed the missing railing without citing it, because it would be difficult to locate and inspect by MSHA. She also held that Boart Longyear was on notice that rails were required based on conversations with the mine operator and also because the company had other drill rigs with railings. She agreed with MSHA that this was an S&S violation and that it was an unwarrantable failure — primarily because the parts had been ordered but not installed before the drill rig was placed into service. She affirmed MSHA’s proposed penalty of $20,900 for the handrail citation.
With respect to the “safe access” allegations, the inspector claimed that there were hoses, pipes, and lines that caused slip, trip, and fall hazards on the drill platform. He alleged that the supervisor said he told management weeks earlier that safe access was needed to this area. The order was issued as S&S (reasonably likely to result in lost workdays) with high negligence. The contractor’s witness testified that he did not believe access was unsafe because miners who access the platform are told to watch out for hoses, hot surfaces, and other tripping hazards and are trained to walk carefully.
Again, ALJ Miller found the inspector to be the more credible witness, capable of determining when access is safe or not safe. She agreed there was a violation and was not convinced by the contractor’s witnesses, finding them not credible because they were “controlled by leading questions.” She affirmed the violation as S&S and an unwarrantable failure, increasing the penalty to $10,000. She stressed the authority of Commission judges to establish penalties “de novo,” which means that they are not bound by MSHA’s proposed assessment and can raise or lower the penalty once a violation has been established.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional, and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at firstname.lastname@example.org or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.