Tips for avoiding common “defect affecting safety” citations.

by Brian Hendrix

The Mine Safety and Health Administration (MSHA) frequently cites mine operators for violations of its Safety Defects standard, i.e. 30 C.F.R. § 56.14100. In 2007, it was the fifth most-cited standard by MSHA at stone operations and the eighth most-cited standard at sand and gravel operations. MSHA often treats 30 C.F.R. § 56.14100 as a “catch-all” standard, citing it when no other standard seems to apply, particularly following an accident involving machinery, equipment, or tools. MSHA also seems to find a way to cite the standard whenever it finds anything at all wrong on a piece of mobile equipment. None of this will likely come as any surprise to a mine operator in the aggregates industry. However, with a basic understanding of the standard, you can minimize your chances of receiving one of these citations.

Let’s start by taking a quick look at the standard itself. One of my colleagues has long said that Title 30 of the Code of Federal Regulations serves as an MSHA-to-English translation book. To speak fluent MSHA, that’s where you have to start. So, in its entirety, 30 C.F.R. § 56.14100 provides that:

Safety defects; examination, correction, and records.

(a) Self-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift.

(b) Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.

(c) When defects make continued operation hazardous to persons, the defective items, including self-propelled mobile equipment, shall be taken out of service and placed in a designated area posted for that purpose, or a tag or other effective method of marking the defective items shall be used to prohibit further use until the defects are corrected.

(d) Defects on self-propelled mobile equipment affecting safety, which are not corrected immediately, shall be reported to and recorded by the mine operator. The records shall be kept at the mine or nearest mine office from the date the defects are recorded, until the defects are corrected. Such records shall be made available for inspection by an authorized representative of the Secretary.

As a performance standard, 30 C.F.R. § 56.14100 is very broad in scope, and it covers a wide range of conditions. For its part, MSHA has run with the standard, not hesitating for a second to apply it liberally. Courts will often defer to MSHA’s interpretation of the standard, and that’s certainly one reason that MSHA feels so free to apply it. However, another reason that MSHA cites this standard so frequently is that MSHA’s application of the standard is rarely challenged.   There is a real difference between an “interpretation” of the standard and an application of it that simply ignores its text.