One Step Forward, Two Steps Back

Tina Grady Barbaccia

October 3, 2011

by Adele L. Abrams, Esq., CMSP

Just when it seems that reason is being injected into the mine safety litigation process, a decision is issued that sets such efforts back significantly. Such is the case with the recent unanimous Federal Mine Safety & Health Review Commission decision in Nally & Hamilton Enterprises, Inc. (FMSHRC, Aug. 11, 2011). In that case, the Commission reaffirmed that “lack of knowledge is not a defense to liability” given the strict liability nature of the Mine Act, and reversed ALJ Feldman’s favorable ruling for the mine operator and remanded the case for determination of gravity and assessment of a civil penalty.

The case involved a surface coal mine, but the rationale of the Commission will be equally applicable to violations at aggregate operations. The citation at issue was written based upon an inoperable backup alarm on a lube truck, which was operating in the production pit where other trucks and loaders remove overburden. The lube truck services the mobile equipment in this area. At 2:15 p.m., the inspector discovered that the backup alarm was not functioning and issued a significant and substantial citation, noting that there were pedestrians (drivers of trucks) on foot in the area where the lube truck was operating.

The Commission took note that, according to the 6:00 a.m. pre-shift record, the backup alarm on the truck was working, and MSHA conceded that the mine operator first learned that the alarm had malfunctioned when it was cited by the inspector. As soon as the operator became aware of this, the truck was removed from service and the alarm was repaired.

In the original hearing, ALJ Feldman vacated the citation, finding that the Secretary had not demonstrated Nally’s “failure to maintain” the backup alarm in a functional condition. The ALJ examined the definition of “maintenance” — defined as “the labor of keeping something … in a state of repair or efficiency; upkeep … and proper care, repair, and keeping in good order.” He reasoned that it was necessary to determine the length of time that the alarm had been disabled in order to determine whether the company had failed to keep the alarm “in good working order.” The ALJ further took notice that pre-shift exams are a means of identifying defects that are in need of repair, and, because that morning’s report showed it was working, there was no evidence that the repair was not performed in a timely manner. ALJ Feldman wrote: “fundamental 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, an opportunity that the evidence reflects was unavailable to Nally in this case.”

MSHA appealed the decision, arguing that Nally violated the standard because the alarm was not functioning when the inspector checked the truck. The Secretary of Labor claimed that the plain meaning of the standard requires the company to “keep up, continue, and preserve from decline, the functional condition of the backup alarm.” It is not in functional condition if it does not work, and the term “maintain” in the cited standard “makes clear the continuous nature of the requirement and includes an ongoing responsibility on the operator to ensure that warning devices be functional at all times.” The agency finally argued that nothing in the cited standard pointed to a “knowledge” requirement, and that an operator may be held liable even if it had no knowledge of the facts giving rise to the violation.

Nally responded that, because there was no affirmative, willful inaction or omission constituting a failure to maintain the warning device, there was no violation. It further argued that, as soon as it learned of the inoperative condition, it immediately removed the equipment from service and repaired it; thus, this immediate action constituted “maintaining” the equipment as required by the standard. It argued, logically, that due process requires that an operator be in a position to prevent an alleged violation before being charged with it under the Mine Act. It argued, in the alternative, that the language was vague because the term “maintain” is not defined, and therefore it did not have constitutionally sufficient warning of what was required, and that the “reasonably prudent person” test should be applied.

This was the first time that the Commission addressed the interpretation of the cited standard, 77.410(c), which requires that “warning devices shall be maintained in functional condition.” The Commission found the language of the standard was clear, as it was able to apply a dictionary definition of “maintain” in this case. The metal/nonmetal standard is quite analogous, as it provides in 56.14132(a) 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.” Therefore, the interpretation of the coal standard will likely be applied in future cases in the same manner to aggregate sector infractions.

The Commission noted that “maintain” has been interpreted in other FMSHRC rulings to mean “keep in a state of repair, efficiency, or validity” … “preserve from failure or decline” and that “functional” means “capable of performing; operative.”  The term “maintain” means to “require a continuing functioning state” and incorporates an ongoing responsibility on the part of the operator to ensure that safety alarms do not fall into a state of disrepair.  It added that this literal interpretation is consistent with the safety objectives of the Mine Act to provide pedestrians with a potentially life-saving warning against the danger of being run over.

In reversing ALJ Feldman, the Commission said that — by giving the mine operator “a reasonable period of time to address defects after they are noted by the pre-shift examiner,” the judge erroneously added a “knowledge requirement” to the standard that is not required by its text. There is liability on the operator regardless of its knowledge of unsafe conditions. As the Commission concluded: “What the operator knew or should have known is relevant, if at all, in determining the appropriate penalty, not in determining whether a violation of the regulation occurred.”  It also opined that accepting ALJ Feldman’s take on the standard would encourage operators to overlook hazards in their pre-shift exams in order to insulate the company against being cited for a violation during a shift. On the other hand, the FMSHRC application of the standard will “encourage more vigilance” in instituting and enforcing effective maintenance procedures.

About the author:

Adele L. Abrams is an attorney, certified Mine Safety Professional, and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Adele also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies.

She is a member of the Maryland, DC, and PA Bars, the U.S. District Courts of Maryland and DC, the U.S. Court of Appeals, DC Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center, and earned her B.S. in Journalism from the University of Maryland, College Park.

For more information, contact her at The Law Office of Adele L. Abrams’ website is

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