Don’t Get Caught by the ‘Catch-All’
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.
For example, have you ever had an MSHA inspector insist on inspecting a truck or a loader that’s not in service, i.e. a truck or a loader that’s just sitting on the line? Then, when the inspector discovers that a back-up alarm or the headlights on the loader is not working, he issues a citation for a violation of 30 C.F.R. § 56.14100(b) failure to correct these “defects” in a timely fashion. Sure, it’s a ridiculous application of the standard, but it’s not uncommon. It happens. So, why is it ridiculous?
The answer to that question is, as is often the case, found in the language of the standard. Per 30 C.F.R. § 56.14100(a), “[s]elf-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift.” The standard clearly does not require an operator to inspect mobile equipment unless and until it is “to be used during a shift.” If it is “to be used during a shift,” the standard only requires the equipment operator to inspect it before it’s placed in operation on that shift. That’s fairly straightforward; there’s not much to interpret here. At the very minimum, if a loader is sitting on a line and is not in use, MSHA should not cite you if you haven’t had the opportunity to inspect the loader and correct any defects. Citing an operator for a defect on a loader that hasn’t been subject to a pre-shift inspection and isn’t in use simply ignores the purpose and clear language of the statute.
This is a fairly common misapplication, misuse, or abuse (feel free to use whatever adjective you’d like to describe it) of 30 C.F.R. § 56.14100. However, let’s consider an even more common example. Let’s assume that the loader underwent a pre-shift inspection before it was placed into service. Then, when an MSHA inspector inspects during the shift, he discovers that a safety device, a limit switch on the hydraulic system, is not working. Now, let’s assume that the equipment operator did not know and did not have any reason to know that the loader was equipped with this particular type of limit switch, the mine operator did not know about it, and a standard pre-shift inspection would not cover the limit switch. Finally, let’s assume that the broken limit switch qualifies as a “defect” that affects safety. On these facts, is there a violation of 30 C.F.R. § 56.14100(b)?
On a very similar set of facts, the Federal Mine Safety and Health Review Commission answered that question with a firm “no.” Why? Well, take a look at 30 C.F.R. § 56.14100(b). It provides that “[d]efects 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.” As the Commission explained, “[w]hether the operator failed to correct the defect in a timely manner depends entirely on when the defect occurred and when the operator knew or should have known of its existence.” In other words, it’s hard to claim that an operator failed to correct a defect “in a timely manner” if the operator did not know (and had no reason to know) about the defect.
Finally, let’s talk about documents, specifically pre-shift examination records. In part, 30 C.F.R. § 56.14100(d) requires that “[d]efects on self-propelled mobile equipment affecting safety, which are not corrected immediately, shall be reported to and recorded by the mine operator.” Put differently, if an equipment operator conducts a pre-shift inspection of a loader, finds that a headlight is out, and fixes the headlight immediately, before the operator puts the loader into service, the standard does not require an operator to keep any record of that inspection.
In reality, MSHA often assumes that if there’s no record of an inspection, no inspection occurred – for some inspectors, if there’s no record of it, it didn’t happen. The best way to avoid this problem is to require equipment operators to fill out a very basic pre-shift inspection form after every inspection. It need not be elaborate or very detailed. The goal here is, first and foremost, to record that an inspection took place. If the operator corrected all of the defects immediately, he would not need to list them on the form. If he didn’t correct them all immediately, the form would be the place where the equipment operator would record what he’d found and reported, but had not yet corrected.
The basic lesson here is that you shouldn’t just accept MSHA’s application of 30 C.F.R. § 56.14100 at face value. Don’t let MSHA ignore the plain language of the standard. Take a hard look at the standard and ask yourself how and why it applies. If MSHA’s application does not make any sense to you, keep digging and do not hesitate to question MSHA or challenge the citation.
Brian Hendrix is an associate at Patton Boggs LLP. He advises clients on environmental, health, and safety law, including litigation, incident investigations, government enforcement defense, and regulatory counseling. Hendrix may be reached via phone at 202-457-6543 or via e-mail at firstname.lastname@example.org.
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.
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