February 5, 2013
Two of the more subjective standards that are commonly cited by the Mine Safety and Health Administration (MSHA) concern appropriate guarding of moving machine parts and stability of highwalls at aggregate operations. In a January 2013 ruling in Allied Stone LLC, ALJ Zielinski looked favorably upon the mine operator’s arguments, and also cut MSHA’s proposed penalties nearly in half.
At issue was Allied Stone’s portable limestone operation, a family owned business which represented itself in the case. The operation had been around for over a decade when it was visited by MSHA inspector Kevin LeGrand in 2010, who issued nine citations (eight of them for alleged safety violations and one for paperwork), seven of which remained at issue during the hearing.
One citation, issued for an alleged violation of 30 CFR 56.3131, which requires that “in places where persons work or travel in performing their assigned tasks, loose or unconsolidated material shall be sloped to the angle of respose or stripped back for at least 10 feet from the top of the pit or quarry wall.
It also requires correction of other “fall of material” hazards. MSHA alleged that there were loader tire tracks parallel to the highwall, about 2 feet away from the 30-foot high wall, and that the wall contained loose rocks and a three-foot overhang. The agency alleged that this could cause injury to persons operating a skid steer or mid-sized loader near the wall to move spilled material during normal mining operations. The citation was classified as reasonably likely to result in a fatal injury, with moderate negligence.
Inspector LeGrand testified that the overhang was about 10 feet long and 5 feet high, with no material underneath. He claimed that the loose rock hazard was not only that it could fall to the ground, but that it could also land on a ledge and initiate additional rock fall.
In rebuttal, the operator argued that the highwall was only 20 to 22 feet high and that the tracks were made by a Volvo loader, not a skid steer. Using the dimensions of the Volvo loader, the owner testified that, if the tracks were 2 feet from the base of the highwall, and the loader was parallel to it, the operator would be no closer than 8 feet to the wall and would be about 10 feet above the ground. However, he added that the loader is usually perpendicular to the wall, which would place the miner at least 12 feet from its base.
Although ALJ Zielinski found that the standard was violated, he differed from MSHA on the significant and substantial (S&S) nature of the citation, noting that the issue is whether the hazard was reasonably likely to result in a reasonably serious injury. He found that MSHA’s S&S determination largely was based on its belief that the small skid steer was regularly used near the highwall, but that the inspector did not attempt to match the tracks to this equipment. He accepted the mine operator’s testimony that the tracks were made by the much larger Volvo loader and that the operator would be away from the wall sufficiently so that, even if a rock fell and struck the loader or the operator’s cab, it would be unlikely to result in an injury, and any injury would be of the lost workday category. Therefore he modified it to non-S&S and affirmed the moderate negligence finding with a $100 penalty.
The judge next tackled the always contentious issue of proper guarding. A non-S&S citation had been issued under 56.14107, which requires machine parts to be guarded to protect persons from contacting gears … head, tail, and take-up pulleys … that can cause injury.” The cited condition involved a 4-inch-wide by 3-inch-high opening at the tail section of the jaw crusher under the conveyor tail pulley, which exposed the fins of the self-cleaning tail pulley. The opening was 32 inches above ground level. Inspector LeGrand testified that he believed miners would be in the area to do maintenance work or clean-up, based on seeing grease around the bearing housing. In addition, adjustments could be made to the pulley or belt that would require work in this area.
At the time of the inspection, the equipment was locked out and tagged out, but when equipment is running, miners stay clear because of the potential for rocks to fall in the area. The operator testified that the belt was adjusted once per year and greasing was done every two months, but that no one worked close enough to become entangled. There were no footprints in the area.
ALJ Zielinski noted that, while there are no specifications for how big an opening in a guard must be in order to be a violation of this standard, the rule does require a reasonable possibility for injury. The purpose of a guard, he wrote, was to protect from inadvertent contact. He concluded that, in this situation, a person would have to intentionally insert their hand into the very small opening, and even if diagnostic tests were performed while equipment was running, there would be no need to insert a hand into or near the opening, nor was other inadvertent contact reasonably possible
The judge vacated the citation on this basis but added, in the alternative, that the mine operator did not have fair notice of the Secretary’s interpretation as applied to this opening. The crusher had been previously inspected by MSHA, and the condition was not cited even though it was in the same exact position. Considering that the general area was guarded, the opening was small and was obstructed by the belt adjustment mechanism, and there was no prior citation history, the company was not given a reasonable opportunity to know that its conduct was prohibited. This ruling was consistent with a similar decision by the same judge in his Knife River Materials ruling in 2011.
The decision also included another guarding citation, issued under the same standard for a 28-inch by 14-inch-wide opening about 6 feet, 8 inches above the ground on a self-cleaning tail pulley. This citation was also written as non-S&S but with high negligence. Testimony indicated that the cone crusher conveyor was missing a guard on the bottom of the pulley, leaving less than 2 inches of self-cleaning fins and the edge of the tail pulley exposed. There was a potential pinch point area on the bottom side of the pulley where the belt wrapped around the back side. There was a warning sign posted at this point at the time of the inspection.
MSHA does not require guards to be installed where machine parts are more than 7 feet (84 inches) away from walking or working surfaces. Here, the distance from the ground to the bottom of the conveyor belt was 80 inches. However, the equipment was not operating at the time, and there had been washing-in of loose material during the three weeks prior to the inspection when equipment was not operated. Normally, the unguarded area would be more than 84 inches above the ground. The plant was also locked out at the time of inspection
ALJ Zielinski did find that, because the pinch point was less than 84 inches from the walking surface at the time of inspection, it did not meet the standard’s requirements, although he observed that a person would have to reach up, move to the side of the exposure area, and reach further up in order to make contact. He affirmed the citation as non-S&S but reduced the negligence level to moderate, with a $75 penalty.
Yet another guarding citation was considered, involving the bottom side of a fin-type tail pulley with a bottom opening that was 42 inches by 15 inches wide, about 74 inches above the ground. This also was characterized by MSHA as non-S&S and high negligence.
The operator argued that the conveyor was reversible and was run in the opposite direction for different products, and, if the allegedly required guard was in place and the conveyor was reversed, the material would have no place to go after being crushed — an infeasibility argument. The judge noted that this area had never been guarded, nor cited, previously and that there was no reasonable possibility of injury because the grease line had been extended so no one needed to come into proximity with the pulley, and that to contact it, one would have to reach under an existing guard. He vacated the citation for this reason, and also on the basis of lack of fair notice.
Three other non-S&S citations — involving 56.14108 (potential whipping action of a belt in an unguarded area), 56.12004 (inadequate bushing of an electrical cable) and 46.3 (having training provided by an individual not specifically listed on the training plan) – were all affirmed as issued.
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.