Differing Perspectives


May 1, 2014

Administrative law judges take different viewpoints on pre-shift examinations and MSHA inspections.


by Dana M. Svendsen


During Mine Safety and Health Administration (MSHA) inspections, disputes between operators and inspectors can arise over whether an observed condition is a defect or whether a piece of equipment is ready for use. Under the Mine Safety and Health regulations, an operator must conduct a pre-shift examination of all mobile equipment prior to using the equipment during a shift (see, e.g., 30 C.F.R. §§ 56/57.14100, 77.1606). Any defects observed must be corrected in a timely manner, and defective equipment must be removed from service. Several decisions have reached differing conclusions on the validity of issued citations when the existence of a defect is acknowledged, and the operator argues that the defect would have been identified and corrected during the pre-shift exam — but no such exam had yet taken place. Some administrative law judges (ALJs) have adopted MSHA’s strict liability approach that the existence of a defect merits a citation unless the equipment has been tagged out. Other ALJs have found that the operator must have an opportunity to conduct a pre-shift exam.

Whether a violation has occurred often turns on what it means to assume continued normal mining operations. Typically, MSHA argues this means the equipment would be put into use, while operators argue that the normal course would be to first inspect the machinery. MSHA’s view is problematic for operators because it assumes the existence of a separate violation, i.e., failure to perform an adequate exam — an exam that has yet to be conducted — to show that the violation has occurred. This effectively shortcuts the government’s burden to prove that the operator knew or should have known about the alleged defect and did nothing to correct it.

In a recent decision, ALJ Rae rejected this approach by MSHA and vacated a citation issued to Martin Marietta for inoperable headlights on a steer skid loader [see Martin Marietta Materials, Inc., Docket No. CENT 2013-332-M (Feb. 18, 2014) (ALJ Rae)]. It was undisputed that the lights had been working when the loader was operated the day before, but on the day of the inspection, the lights did not function. It was also undisputed that, at the time of the inspection, the operator had not yet conducted a pre-shift examination, and the loader was not in use. At the time of the inspection, the skid steer loader was parked in an equipment shop, though it was not tagged out. ALJ Rae rejected MSHA’s argument that the operator either violated 30 C.F.R. § 56.14100 (b) (failure to correct defects in a timely manner) or 30 C.F.R. § 56.14100(c) (failure to tag out equipment not immediately corrected). She found there was no evidence that the operator would have failed to identify the headlight defect prior to putting the skid steer loader into operation. There was no reason to assume that the operator would not have inspected, identified, and corrected the defect prior to putting the equipment back into use, and because there was no evidence of “continued operation,” there was no violation.

In a similar case, ALJ Moran vacated a citation issued under 30 C.F.R. § 56.14100(b) for allegedly failing to adequately inspect a front-end loader with a defective brake light [see Beverly Materials, LLC, 35 FMSHRC 88 (Jan. 14, 2013) (ALJ Moran)]. The inspector issued the citation after initially observing the front-end loader in one location and then observing it at a new location about an hour and 20 minutes later. The operator explained the reason for the change in location was that the front-end loader had to be moved to the location of the steepest grade the machine would travel to test the parking brake during the pre-shift exam. Based upon this explanation, the ALJ found the front-end loader was not in service, and the “only credible conclusion” was that the loader was moved to facilitate the pre-shift exam. The citation was vacated because the loader had not yet been put into operation with the defective brake light. The decision in Beverly Materials is on appeal to the Federal Mine Safety and Health Review Commission (Commission), and there will continue to be uncertainty around this issue until the Commission issues its ruling on ALJ Moran’s decision.

The Federal Mine Safety and Health Act of 1977 (Mine Act) could have easily declared equipment be maintained defect free “at all times.” The regulations could have taken the same approach. Neither one has such a draconian rule. Instead, the regulations require an inspection be conducted prior to use and that defects be addressed in a reasonable time [see Giant Cement Co., 13 FMSHRC 286 (Feb. 25, 1991) (ALJ Merlin) (§ 56.14100(b) does not prohibit defects, but requires only that defects be corrected in a timely manner)]. MSHA’s aggressive stance effectively requires all equipment to remain free from defects at all times unless tagged out of service. This view should be rejected by the Commission. By assuming miners will not follow the most basic of safety precautions, MSHA unreasonably burdens operators with alleged violations that may never come about.

Dana M. Svendsen is an associate in Jackson Kelly PLLC’s Denver office, where she practices with the Occupational Safety and Health Practice Group. She can be reached at 303-390-0011 or via email at mailto:dmsvendsen@jacksonkelly.com.

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