August 1, 2011
A recent ALJ decision establishes that the Mine Act’s imposition of ‘strict liability’ on operators is not without its limits.
By Ben McFarland
Most who are familiar with the Federal Mine Safety and Health Act (Act) are aware that it is generally said to be a “strict liability” statute. This simply means that the Act and its corresponding regulations set forth standards which, if not complied with, can and will result in the issuance of a citation, regardless of whether there was any “fault” on the part of the operator. In other words, if a prohibited condition exists, it is a violation of the Act, regardless of any mitigating circumstances.
In a recent case involving two citations issued for failure to maintain certain mobile equipment, the Secretary of Labor (Secretary) tried — and failed — to rely on strict liability principles in order to uphold the citations. See Wake Stone Corp., Docket SE 2010-95-M (ALJ Gill, May 6, 2011). The citations at issue in Wake Stone alleged violations of 30 C.F.R. §56.14132(a) for failing to maintain the service horns on an excavator and a bulldozer. Neither the excavator nor the bulldozer 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.
When the issuing inspector arrived at the mine, the vehicles had not yet been tagged as being out of service, and it is ostensibly for this reason that the inspector was not persuaded by the subsequent pre-shift examination and, instead, issued the citations alleging violations of 30 C.F.R. §56.14132(a).
In the contest proceedings that followed, the Secretary relied heavily on strict liability principles, arguing that “the ‘plain-meaning’ of Section 56.1432(a) is that if a horn fails, then the horn has not been maintained, and a violation has occurred.”
The Secretary further argued that, because the vehicles were not tagged out of service, they “might have been used,” which rendered them eligible for inspection and possible violations of the Act.
Finally, the Secretary argued that a contrary interpretation of the Act would permit operators to “‘escape’ strict liability for alleged violations by declaring [the need for a] pre-examination and [subsequently] tagging the vehicles out of service while the inspector stands by.”
Although ALJ Gill noted that the Secretary’s argument in this regard presents a “reasonable concern that should not be taken lightly,” and further that there is case law that supports the proposition that, if equipment has not been effectively tagged out of service, it is eligible for inspection and potential violations, ALJ Gill nevertheless refused to find a violation of the Act under the circumstances presented. ALJ Gill focused on the interplay between 30 C.F.R. §56.14100 and 30 C.F.R. §56.14132(a) to support his decision and opined that these regulations must be analyzed and interpreted together, not in isolation of one another.
ALJ Gill first noted that Section §56.14100 provides that “self-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift,” while §56.14132(a) provides that “manually-operated horns…on self-propelled mobile equipment…shall be maintained in functional condition.” Construing these regulations together, ALJ Gill concluded that §56.14132(a), a maintenance regulation, is the very reason that examination regulations such as §56.14100 exist. In other words, the entire basis for requiring that mobile equipment be examined is to allow the operator to discover defects (e. g. would-be violations) on mobile equipment and correct them before putting the vehicle into use.
ALJ 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 in Wake Stone, ALJ Gill vacated the citations.
While the decision in Wake Stone is not precedent setting authority from the Federal Mine Safety and Health Review Commission (Commission), the decision could nevertheless prove to be fairly significant to mine operators.
Under the rationale set forth in Wake Stone, an operator arguably has the ability to pre-shift inspect mobile equipment that has not yet been operated on a particular shift prior to submitting such equipment to MSHA for inspection. Whether other administrative law judges and/or the Commission will agree with ALJ Gill’s decision in Wake Stone remains to be seen, but, regardless, Wake Stone is unquestionably a positive decision for the industry, and one that should encourage operators moving forward.
Ben McFarland is an associate in the Charleston, W.Va., office of Jackson Kelly PLLC where he practices in the firm’s Occupational Safety and Health Practice Group. He can be reached at 304-340-1235 or at firstname.lastname@example.org.