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Drawing the Correct Line
Posted By admin On December 1, 2013 @ 6:00 am In Articles,Regulatory,Rock Law | No Comments
Despite MSHA’s contrary position, mobile equipment parked on a ‘ready line’ does not necessarily establish that it is “ready” for inspection for purposes of the Mine Act.
By Benjamin M. McFarland
The Mine Safety and Health Administration (MSHA) has long taken the position that “Inspectors must inspect equipment for safety defects which is parked at ready lines or similar areas unless such equipment is tagged or marked out of service.”See MSHA’s Handbook for Metal and Non-metal Mines, April 2013 [emphasis added]. MSHA’s Handbook generally defines a “ready line” as “areas where mobile or similar equipment is parked and ready for immediate use.”
While many mines do have designated areas where mobile equipment that is available for use is parked, this does not necessarily mean that the equipment has been pre-shifted. Because the regulations require an operator to pre-shift mobile equipment prior to placing it into operation on any particular shift, such equipment is not technically ready for “immediate use” until it has been properly examined for defects.
MSHA often takes the position that, unless mobile equipment has been tagged as out of service, the equipment is ready for immediate use and is, therefore, free game for inspection regardless of whether it has been pre-shifted. This has resulted in violations being issued on mobile equipment that has neither been pre-shifted nor operated on a particular shift. Predictably, operators have taken issue with these citations, and, in at least two cases, courts have found that MSHA is overstepping its bounds and that an operator has the right to pre-shift the equipment before the violation can be issued.
For example, Judge Koutras recently vacated a citation because it was issued without affording the operator the opportunity to pre-shift the mobile equipment at issue. See Loudon Quarries, Div. of Chantilly Crushed Stone, Inc., 34 FMSHRC 643 (March 14, 2012, ALJ Koutras). The citation involved a front-end loader and alleged a violation of 30 C.F.R. § 56.14100(b) because the brake lights on the machine were not functioning. To support the violation, the inspector alleged that the “loader was on the ready line to be used when needed,” and that a company employee had “checked” the loader prior to the inspection and failed to note the defective brake lights.
The company employee who “checked” the loader prior to the MSHA inspection did so at the direction of his supervisor because his supervisor wanted him to start the loader to “warm it up” for the inspector. While the employee briefly inspected the loader and found no defects, the employee did not conduct a pre-shift examination because he had no intention of operating the loader on that shift. While the operator did not dispute that the loader was parked in an area where equipment can be taken for use — MSHA’s so-called ready line — the operator also noted that none of the equipment in this area is ready for “immediate use” until it is properly pre-shifted.
In vacating the citation, Judge Koutras noted that “[r]egardless of the characterization of the area [where the loader was parked] as a ‘ready line’…[the inspector] conceded that any parked equipment had to be pre-shifted before it was moved and placed into service… On the facts of this case, I conclude and find that the inspector’s preemptive and premature issuance of the violation in absence of any evidence that a full regular pre-shift examination was performed …did not afford the respondent with a reasonable opportunity” to discover and repair the defect. Accordingly, Judge Koutras vacated the citation.
Similarly, in Wake Stone Corp., 33 FMSHRC 1205 (May 6, 2001), Judge Gill vacated two citations which alleged a violation of 30 C.F.R. § 56.14132(a) because the service horns on an excavator and a bull-dozer were not functioning properly. Neither the excavator nor the bull-dozer had been in operation during the course of the relevant shift, and when the inspector sought to inspect the equipment, the operator insisted that the vehicles be taken through their pre-shift examination as required under 30 C.F.R. § 56.14100. When the vehicles were taken through the pre-shift examination, the operator discovered the malfunctioning horns, noted the defects in its pre-shift examination report, and tagged the vehicles as non-operational. Despite this action by the operator, the inspector subsequently inspected the dozer and excavator and issued the violations.
In vacating the citations, Judge Gill noted that §§ 56.14132(a) and 56.14100 complement each other and should be viewed and interpreted in conjunction with one another. Judge Gill opined that because § 56.14100 requires that an operator examine equipment for defects prior to putting such equipment in service, and the equipment at issue had not been put in service during the relevant shift, the operator should have been afforded an opportunity to examine the equipment prior to the issuance of any citation. Because the operator had not been afforded that opportunity, Judge Gill vacated the citations. Following this decision, the Secretary submitted a petition for discretionary review, and according to the Commission’s website, the decision in Wake Stone is still under review.
While every situation presents its own unique set of circumstances and legal implications, cases such as Loudon Quarries and Wake Stone are good examples of courts limiting MSHA’s inspection authority and of taking a practical, common sense approach to the Mine Act. Judge Koutras and Judge Gill properly recognize that there are certain situations in which operators should not be held liable for unknown conditions on mobile equipment, particularly when the equipment has neither been pre-shifted nor placed into operation on a given shift. Having said this, the decisions in Loudon Quarries and Wake Stone are not precedent setting authority from the Commission, and operators should therefore take notice that MSHA will likely continue to inspect and issue citations on mobile equipment that is parked on a designated ready line.
Benjamin M. McFarland is a member in Jackson Kelly PLLC’s Wheeling, W. Va.. office, where he practices with the Occupational Safety and Health Practice Group. He is also a member of the firm’s Oil and Gas Industry Group. McFarland can be reached at 304-233-4000 or via email at firstname.lastname@example.org .
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