April 30, 2012
On April 1, 2012, the Mine Safety and Health Administration (MSHA) launched phase three of its “Rules to Live By” campaign, which now includes six additional standards for metal/non-metal mines that will be aggressively enforced, presumptively “significant and substantial” (S&S), and reviewed for special assessment. One of the most troubling aspects of this campaign is the inclusion of 56.14100(b), a “catch-all” standard covering equipment, machinery, and tools with “defects affecting safety” that have not been corrected in a “timely manner.” Many mine operators anticipate that MSHA will use this enforcement initiative to target defects on equipment, whether or not in use or inspected for potential defects while it sits idle.
A new decision may help in that regard. On March 14, 2012, ALJ Koutras vacated a citation issued under 56.14100(b) in Secretary of Labor v. Loudoun Quarries, Div. of Chantilly Crushed Stone Inc. Although it is not binding precedent, it can be offered in cases as persuasive authority under similar factual situations. At press time, it was not known whether MSHA would file a Petition for Review.
The cited section, 56.14100(b), is short and to the point: “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.” This, historically, has been disputed over two issues: whether the condition cited was actually one that “affect[s] safety” and whether it was corrected “in a timely manner.” In the Loudoun Quarries case, the operator was cited after a parked Caterpillar 992C front-end loader was found to have brake lights that were not working. The inspector did issue the citation as non-S&S because, if the equipment were used in the normal pit area, there are no employees on foot, and it was unlikely an injury would occur, but if one occurred, it would likely be limited to a lost-time injury. He characterized it as “moderate” negligence because the company was deemed to have an effective equipment pre-use inspection program.
The operator’s counsel did not argue that non-functional brake lights were not covered by the standard, but focused on the “timely manner issue” and the legitimacy of citing equipment that was parked, had not been recently used, and had not been assigned for use that day or in the future. The equipment was a spare, used only infrequently, and MSHA did not deny that point.
The inspector said he issued the citation because, in his view, the equipment was parked on the “ready line” and — in the inspector’s experience — anything on the ready line “would have been looked over and made ready for service…to ensure that everything is functional, and that all safety defects are corrected.” However, he told the judge that, in his view, the difference between a walk-around check and a full MSHA-required pre-shift inspection is “basically terminology” and would depend on the individual performing the task. He conceded that a full pre-shift exam is not required before a vehicle is inspected by an MSHA inspector, and that there was no evidence that the loader had ever been operated by anyone while the brake lights were defective.
During the operator’s testimony, the ALJ learned that, after the arrival of the inspector, a mine management representative directed an equipment operator, Jesus Vega, to start four pieces of equipment so they could warm up before the inspector came to check out the vehicles (the inspection occurred in December, and it was reportedly cold that day). Vega had indicated to the inspector that he “checked it out” but that a full pre-shift had not been conducted because he was not the assigned operator of the equipment, and no one had been assigned to operate it that day. He noted that the brake lights could not be checked at the time he turned on the equipment to warm it up, because a second person was not available to assist him. He also testified that a normal pre-shift under company policy takes about an hour and is documented in writing.
The quarry foreman testified that, for more than 15 years, the mine has never had an area called a “ready line” and that the area so characterized by the inspector was where equipment is parked that is not in use that day. He added that parked equipment is not ready for immediate use until it has had a full preshift. Vega confirmed that the supervisor had only told him to check it out because of the cold weather, but did not direct him to operate it or to pre-shift it, because it was not intended to be used.
The inspector, David Nichols, acknowledged that, at the closeout, the plant manager told him that had the loader been needed, it would have received a full pre-shift inspection, and the brake light situation would have been discovered. On cross-examination, the inspector admitted that there is no MSHA requirement to have an “equipment ready line,” that any equipment must be preshifted before it is removed from the “ready line” and placed into service, and that equipment is not considered to be in service until it is needed. He added that he did not know how long a piece of equipment could remain on the “ready line.”
In ruling for Loudoun Quarries, the ALJ noted that MSHA had not shown how long the defect had existed, nor had it shown that it had ever been operated with a defect or that a full pre-shift inspection had been made to discover the defect. MSHA had argued in rebuttal that since it was not “impossible” to discover the brake lights defect, the citation should be affirmed.
ALJ Koutras found that the company’s credible testimony and evidence reflected that the loader was only started and warmed up because the inspector was on site and would ask to inspect the equipment. He found that Vega’s brief preparatory work of checking the equipment fluid levels did not constitute the full pre-shift examination that normally takes one hour. Therefore, there was no evidence that the loader was pre-shifted under the company’s established policies.
The ALJ concluded that the cited standard does not require that all parked equipment not in service must be maintained and ready for use at all times. He found that the inspector prematurely issued the citation in the absence of any evidence that a pre-shift examination had been performed, which would have put the company on notice that a defect had to be addressed, and — therefore — the mine operator did not have a reasonable opportunity to discover the defect and timely repair it. He took note of Vega’s statement that he had not planned to put the equipment into operation, and that he was not instructed to put it into service. He also found the inspector’s statement that the difference between what Vega did and a full inspection was only “terminology” to be contradictory. Therefore, the weight of evidence did not support a finding that the defect was not corrected in a timely manner within the meaning of 56.14100(b).
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.