June 4, 2013
On May 31, 2013, ALJ Rae issued a decision affirming work practices by a contract driller at an aggregates operation that had been challenged by MSHA. In Drilling & Blasting Systems, Inc. (D&B), a single driller had been dispatched to prepare holes for an upcoming blast at a Luck Stone quarry in North Carolina. The worker was using an Ingersoll-Rand DM30 drill, which is hydraulically operated and trams on tracks. The drill has an enclosed cab at the rear, which contains control levers, and once the drill is positioned, it is raised off the ground and rests on hydraulic jacks. The driller then sets the feed and rotation speed controls, and the controls do not need to be used again until drill rods require changing. There is also an emergency stop control outside the drill, and another emergency stop is located inside the cab, in case the drill must be shut down quickly.
During a regular inspection of the mine, MSHA Inspector Cecil Worrell observed the drilling and issued to D&B two significant and substantial citations under Section 104(a) after he saw the drill operator approximately 18-20 feet from the drill. The first citation was issued when the driller was observed outside of the cab but walking toward the drill, while the second was issued the next day when the driller was observed in his pickup truck located near the drill and within the blast area, where he was either completing drill logs or getting some water. In both cases the drill was running at the time.
Worrell issued the citations under 30 CFR 56.7012, which requires that “while in operation, drills shall be attended at all times.” The inspector interpreted this to mean that the driller must remain in the cab at the controls, or within arm’s reach of the controls, at all times when the drill is in operation. He admitted at trial that MSHA had no interpretative policy or procedural memoranda interpreting the standard. There were no prior decisions issued under this standard, making it a case of first impression, but the judge noted that D&B had once previously been cited by MSHA under this standard for the same work practice and the agency had vacated the citation.
Worrell admitted that he had never operated a drill himself. However, in his opinion, a driller was required to shut down the drill anytime he intended to exit the cab. He referred to a potential hazard, claiming that a miner could suffer fatal injuries if the steel or bit became hung in the hole and exploded. He referred to a coal fatality as the basis for this, but the judge noted that this involved a miner whose clothing became entangled while threading new steel–a situation completely unrelated to the case at issue. He also said he was not aware of any reason why a drill operator would need to leave the cab while the drill was operating.
The term “attended” is not defined in the standard, but 30 CFR 56.2 defines “attended” as “presence of an individual or continuous monitoring to prevent unauthorized entry or access.” In rebuttal, D&B’s witnesses–which included the foreman/drill operator (with 8 years drilling experience), the safety manager of the company (with 16 years experience as a driller) and expert witness Paul Earl, Jr. (a mechanical engineer who designed and built Ingersoll-Rand drills)–consistently explained that there were hazards in requiring the drill operator to remain in the cab because, if the ground becomes unstable, the drill could go over the highwall taking the miner with it.
The driller needs to be outside the drill to monitor ground conditions. He must also perform mandatory functions such as checking hydraulics, fluid levels and to fill the water tank to control drill dust. These activities must be done while the drill is in operation. When presented with the inspector’s hypothesis about exploding drill steel hazards, Earl called it “completely erroneous.”
The owner of the company, who had been a driller since age 15, testified that it is industry practice for drillers to remain outside the control cab, and he noted that MSHA had observed its drilling activities for over 20 years, on a weekly basis, and had no problem with it. He added that, based on discussions at state mining association meetings in multiple states, he concluded that the industry definition of “attended” is “being in the vicinity of the machine, being able to check out ground issues.”
ALJ Rae found that the term “attended” is ambiguous on its face but that the Secretary’s interpretation was erroneous and not worthy of deference. The first reason was that this interpretation was rejected by MSHA itself when the previous D&B citation was issued, in the same MSHA Metal/Nonmetal district one year earlier.
More critically, the judge found that giving effect to the MSHA interpretation would lead to “extraordinarily dangerous results” because the driller’s most important duties are to ensure stable ground conditions, attend to hydraulics water pressure, temperature and other drill functions, which can only be accomplished when the drill is running and the driller is free to move about the entire blast area. The D&B drillers, with more than 50 years combined experience, as well as the expert witness, confirmed this. The drills were not designed for the operator to remain in the cab, once the drill is set for load and pressure and the steel starts to turn. In the event of emergency, the automatic cut-off switch would stop the drill’s revolutions.
In summary, the ALJ found persuasive the interpretation of “attended” as being within the blasting area where holes are being drilled. She added that if she accepted the agency’s position, “it would be the most dangerous thing in the world to do.”
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, Maryland. Abrams provides consultation, safety audits and training services to MSHA- and OSHA-regulated companies. Contact Abrams at firstname.lastname@example.org or visit safety-law.com for more information.