An Alarming Decision

Review Commission ruling increases the burden on mines to maintain automatic warning devices on mobile equipment.

In a case involving coal standards, the Federal Mine Safety and Health Review Commission (Review Commission) issued a holding overturning a decision by Administrative Law Judge (ALJ) Feldman that may also have implications for metal/non-metal operations. The Review Commission decision in Nally and Hamilton Enterprises, Inc. sets strict expectations for the maintenance of automatic warning devices, such as back-up alarms, on mobile equipment. Although the case involved a surface coal mine, the regulation at issue in the case is nearly identical to a Part 56 standard. Because the language is similar, it is important for metal/non-metal mines to familiarize themselves with the Review Commission’s holding in order to avoid unwelcome surprises during an MSHA inspection.

The case involved an alleged violation of 30 C.F.R. §77.410(c). This section addresses automatic warning devices on mobile equipment. The MSHA inspector determined that the operator violated the portion of the standard which requires that “warning devices shall be maintained in functional condition.” Metal/non-metal mines are subject to a similar standard at 30 C.F.R. § 56.14132(a), which requires that “manually operated horns or other audible warning devices provided on self-propelled mobile equipment as a safety feature shall be maintained in functional condition.” The Review Commission and ALJ Feldman disagreed over what it means to “maintain” a back-up alarm in functional condition.

The facts of the case are fairly straightforward. Nally and Hamilton Enterprises, Inc. (Nally) operates a surface coal mine in Bell County, Ky. As part of its operation, Nally uses lube trucks. Lube trucks carry liquids such as fuel, antifreeze, and oil to service the operator’s mobile equipment.

An MSHA inspector discovered that the back-up alarm on one of the lube trucks was not functioning. The inspector designated the violation as “significant and substantial” (S&S). The back-up alarm was working when it was inspected during the pre-shift examination, but in a classic “Murphy’s Law” scenario, ceased working before it was examined by the MSHA inspector. The operator was unaware that the alarm had stopped working until the inspector issued the citation.

ALJ Feldman vacated the citation. He found that the Secretary had not established that Nally had failed to maintain the back-up alarm in functional condition. The ALJ felt it was important to consider how long the alarm had been disabled when making a determination as to whether the operator had failed to maintain the alarm. He stated that “[f]undamental fairness dictates that a mine operator must be given a reasonable period of time to address defects after they are noted by the pre-shift examiner.”

The Review Commission, however, soundly rejected ALJ Feldman’s analysis. It determined that, because the cited standard requires the duty to “maintain” the back-up alarms, the “warning devices shall be capable of performing on an uninterrupted basis at all times” (emphasis in original). The Review Commission stated that its holding is consistent with its earlier decision in Lopke Quarries, in which it determined that the duty to “maintain” imposes a continuing responsibility on operators to ensure that safety alarms do not fall into a state of disrepair. It reasoned that, because the alarm was not working on Nally’s lube truck at the time of the inspection, the alarm was not being “preserved from failure or decline.” In other words, not only must an operator fix an alarm that is broken, but an operator also has a duty to prevent an alarm from malfunctioning in the first place (“preserving it from decline”).

The Review Commission felt that by reasoning that the operator should be accorded a reasonable period of time to address defects, ALJ Feldman erroneously injected an additional requirement into the standard that an operator must possess knowledge of the defect in order for there to be a violation. Basically, the Review Commission stated that if the standard required an operator’s knowledge of the defect, or if it allowed for timely repair of that defect, it would have said so in plain language.