For clients and friends of Jackson Kelly PLLC
Volume 10, Number 5
©2014 Jackson Kelly PLLC
Under the Mine Safety and Health regulations, an operator is required to conduct a preshift 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. During MSHA inspections, disputes between the operators and the inspectors can arise over whether an observed condition is a defect or whether a piece of equipment is ready for use. On this latter claim, a number of decisions have reached differing conclusions on the validity of issued citations when the existence of a defect is acknowledged, but the operator argues that the defect would have been identified and corrected during the preshift 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 preshift exam. See, e.g., Wake Stone Co., 33 FMSHRC 1205 (May 2011) (ALJ Gill).
The Federal Mine Safety and Health Review Commission (“Commission”) has not adopted a strict liability approach, but it has found that equipment need not be in actual use for a violation to occur. Mountain Parkway Stone, 12 FMSHRC 960 (Rev. Comm. May 23, 1990) (finding that while the equipment was not in actual use at the time of citation, the record establishes that the boom truck had been used while it had the cited defects affecting safety and truck was not tagged out nor was there any evidence that the operator would repair the condition, and the truck was in ‘turn-key’ condition); see also Ideal Basic Industries, Cement Division, 3 FMSHRC 843, 844‑45 (Rev. Comm. April 1981) (concluding that track coupler had been used in defective condition, but noting that “If equipment with defects affecting safety is located in a normal work area, fully capable of being operated, that constitutes ‘use’. . . . To preclude citation because of ‘non-use’ when equipment in such condition is parked in a primary working area could allow operators easily to use unsafe equipment yet escape citation merely by shutting it down when an inspector arrives.”). The determination of whether a violation exists will depend on the specific facts of each case, such as the nature of the alleged defects, whether they were likely present during prior use of the equipment, and what the routine maintenance practices of the mine consist of.
Whether a violation has occurred often turns on what it means to assume continued normal mining operations. Typically, MSHA argues that 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 – in order to show that the violation has occurred. This effectively short-cuts 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 decision issued on February 18, 2014, ALJ Rae rejected this approach by MSHA and vacated a citation issued to Martin Marietta for inoperable headlights on a steer skid loader. Martin Marietta Materials, Inc., Docket No. CENT 2013-332-M (Feb. 18, 2014) (ALJ Rae). At the time of the inspection, the skid steer loader was parked in an equipment shop, though it was not tagged out. 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 the operator had not yet conducted a pre-shift examination on the loader and the loader was not in use at the time of the inspection. 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, in the alternative, 30 C.F.R. § 56.14100(c) (failure to tag out equipment that is not immediately corrected). She found that there was no evidence that the operator would have failed to identify the headlight defect prior to putting the skid steer loader into operation. Because there was no evidence of “continued operation,” there was no violation. 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.
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. 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 twenty minutes later. The operator explained that 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 in order to properly perform the pre-shift exam. Based upon this explanation, the ALJ found that the front end loader was not in service and the “only credible conclusion” was that the loader was moved in order for the pre-shift exam to be performed. 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 currently on appeal to the Commission.
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. The Federal Mine Safety and Health Act of 1977 (“Mine Act”) could have easily declared that 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 that an inspection be conducted prior to use and that defects be addressed at that time. The regulations also provide that defects be corrected within a reasonable time – not the absolute rule that all defects be deemed immediate violations regardless of whether equipment is in or is about to be put into use. 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). The regulations take a balanced approach, implicitly acknowledging that, as a practical matter, equipment defects are often the result of normal wear and tear. While it is vital to inspect equipment and address hazardous defects before putting the equipment into use, equipment that is simply kept on hand and temporarily out of use may not be in pristine condition. There is little purpose is citing idle equipment when the ordinary practice of miners is to examine that equipment and address any hazards prior to putting it into use. By assuming that miners will not follow this most basic of safety precautions, MSHA unreasonably burdens operators with alleged violations that may never come to pass.
This article was authored by Meredith A. Kapushion, Jackson Kelly PLLC. For more information on the author, click here.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Kristin R.B. White
(303) 390-0006
kwhite@jacksonkelly.com
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Laura E. Beverage (303) 390-0003 |
Karen L. Johnston (303) 390-0008
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R. Henry Moore (412) 434-8801 |
Michael T. Cimino (304) 340-1000
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