January 7, 2012
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.
The Commission expressed concern that, if it were to restrict an operator’s liability to hazards identified in pre-shift examinations, this could lead to “perverse outcomes.” For instance, it suggested that an operator could overlook a hazard during a pre-shift examination in order to insulate itself from being cited for a violation during the shift. The Review Commission believes that its holding in the Nally case will encourage “more vigilance with instituting and enforcing effective maintenance procedures.”
While the Review Commission made it clear that an operator’s knowledge (or lack thereof) of a malfunctioning back-up alarm was not relevant to the question of whether a violation occurred, it did concede that a lack of knowledge could impact the penalty assessment. Therefore, an operator caught in a situation similar to Nally’s can probably make a reasonable argument that its negligence was low or non-existent.
Of course, back-up alarms provide constant feedback regarding their function while in use. As such, miners who operate mobile equipment outfitted with back-up alarms should be reminded to do an “ear check” while operating the equipment. Likewise, all miners should be encouraged to notify the equipment operators if they become aware that a back-up alarm is not engaging as it should. This kind of awareness may serve to limit an operator’s potential penalty exposure. AM
Michelle Witter is an associate in Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0036 or firstname.lastname@example.org.