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 safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.