April 1, 2010
Rock and roll
By R. Brian Hendrix
Know when to mark a machine as “removed from service” and when to label it as “available for use.”
Has a Mine Safety and Health Administration (MSHA) inspector ever inspected a piece of mobile equipment, despite the fact that it is not running or in operation and has not had a pre-shift inspection? Has an inspector ever asked you to operate a piece of equipment or machinery just so he or she can inspect it? Did the inspector issue a citation for an alleged violation discovered during the inspection of that equipment or machinery after you started it up? If you answered any or all of these questions with a “yes,” you are not alone. Indeed, it seems as though the number of mine operators who are answering “yes” to these questions is growing by the day. Here’s why, along with a few suggestions aimed at reducing your liability in these kinds of situations.
MSHA believes that if equipment or machinery is available for use, it has the authority to cite any defect or other violation it finds. Additionally, MSHA may take the position that a piece of equipment that is tagged out, but not otherwise disabled, is “available for use” [Citation and Order Writing Handbook for Coal Mines and Metal Non-metal Mines, PH08-I-1 (March 2008)]. Here’s an example from the Handbook that illustrates MSHA’s point:
Scenario: A loader was observed parked and not operating at the time of inspection. It did not have the required seat belts installed. The inspector determined that the machine was used as a spare and was not out of service. The inspector did not issue a citation for the lack of seat belts. The rationale used by the inspector was that the loader was not operating at the time he or she observed the violation.
This evaluation is not correct — a violation was observed on mobile equipment that could be started and used any time subjecting miners to possible injury death. A citation shall be issued for all violations found on equipment or machinery not taken out of service and tagged prior to being inspected by MSHA.
Basically, MSHA will inspect equipment or machinery if it could be used or placed into service, regardless of whether the equipment or machinery is, in fact, in use, and regardless of how likely it is to be used.
What does it take to remove equipment or machinery from service? MSHA instructs its inspectors to issue a citation for “all violations found on equipment or machinery not taken out of service and tagged prior to being inspected by MSHA.” However, it also tells its inspectors that unless the equipment or machinery in question is physically disabled, MSHA may treat it as “available for use.” According to MSHA: ‘removed from service’ does not mean that the mine operator stopped using and parked a piece of equipment (e.g., front-end loader, truck) or a mining unit (e.g., portable crusher, screening unit) when it could or can be restarted and easily placed back into service.
To remove equipment or machinery from service, MSHA says a mine operator must “permanently incapacitate” or “render [it] inoperable.” Here’s the example MSHA uses in its Handbook to show what this means in practice:
Scenario: A loader is cited for not having an audible back-up alarm installed. The mine operator (or contractor) takes the tires off the loader, places it on blocks, removes the battery, and welds the doors closed. Any of these actions could qualify the equipment as being “removed from service” and justify termination of any outstanding citation(s) or order(s).
In years past, it was common for an inspector to treat a piece of mobile equipment that was parked and tagged out as “removed from service.” That certainly makes sense, and it’s a more reasonable approach. However, according to MSHA’s Handbook, a tag may not be enough.
Whether MSHA’s approach or interpretation is correct as a matter of law (or even reasonable) is very much open to debate, a debate that the Federal Mine Safety and Health Review Commission will likely be asked to resolve. In the meantime, however, mine operators need to know what their rights are when MSHA directs machinery or equipment to be placed into operation and, more importantly, how best to deal with such a situation. Here are the three most common questions mine operators ask when in these situations:
1. Does MSHA have the authority to inspect equipment or machinery that is not in service? Yes. MSHA inspectors have broad authority under the Federal Mine Safety and Health Act (Act) to inspect equipment or machinery on mine property. MSHA’s inspection authority — its right of entry — isn’t unlimited, but it’s incredibly broad. The fact that the machinery or equipment in question is not in service at the time of the inspection does not change or limit MSHA’s authority to inspect it.
2. Can MSHA require a mine operator to operate a piece of equipment or machinery? No. MSHA inspectors have no authority to direct routine mining operations, although MSHA inspectors are authorized to withdraw miners from areas of a mine where the inspector believes there to be an imminent danger. Put differently, an MSHA inspector is authorized to shut a mine or an area of a mine down, not to run a mine. What this means is that an MSHA inspector has no authority to order you to start a haul truck, to energize a conveyor, or to otherwise require you to operate any equipment or machinery that is not already in service at the time of the inspection.
3. Should a mine operator operate machinery or equipment if MSHA asks the operator to do so? Generally speaking, no. Demonstrations of any sort are ill advised, and operating equipment or machinery solely to satisfy an MSHA inspector’s request qualifies as a demonstration. However, there may be situations in which a mine operator decides that it is better to run a piece of equipment or machinery than it is to deny an inspector’s request. If you do choose to place equipment or machinery in operation at MSHA’s request, conduct a thorough pre-shift or pre-operational inspection of the equipment or machinery and carefully note any potential defects or other conditions that may affect safety in any way. If you discover any potential defects or violative conditions during the inspection that may affect safety, do not (under any circumstances) place the equipment or machinery into operation until you have addressed or corrected those defects or conditions.
MSHA’s approach may not be correct as a matter of law or even reasonable, but it is the approach many inspectors are likely to take. The answers to the three questions above should provide you with a basic understanding of MSHA’s authority and a mine operator’s rights in such a situation. Citations issued for alleged violations found during an inspection of out-of-service equipment (or after equipment is started up in response to an inspector’s request) should be flagged and, where appropriate, challenged. AM
R. Brian Hendrix is a partner at Patton Boggs LLP’s Washington, D.C., office. He may be reached via phone at 202-457-6543 or via e-mail at firstname.lastname@example.org.