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 safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.