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 email@example.com.
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