$afepro thanks Jim Sharpe of Sharpes Point Newsletter for this important report.


A judge's decision last month vacating all but one of six guarding citations issued to an Oregon aggregates operator underscores the potential havoc an inexperienced MSHA inspector can bring to the country's mines.

Hired 14 months earlier, Bryan Chaix (pronounced "Shay") had just completed inspector training when he appeared at LTM, Inc.-Knife River Materials' MC-1 plant near Coos Bay in June 2008. Although Chaix's experience as an inspector was limited, he had held several positions in the mining industry, including a six-month stint as a conveyor mechanic just before joining MSHA.

In a decision May 6 by Senior Administrative Law Judge (ALJ) Michael E. Zielinski, the judge concluded that Chaix relied upon what Zielinski said were "two general theories of exposure" when he inspected the mobile crushing unit.

Chaix's inspection/maintenance theory involved his belief that a miner inspecting or maintaining equipment might become entangled by touching gear boxes or bearing caps and/or greasing bearings while the equipment is in operation. Based on his experience, Chaix believed miners could contact moving machinery during inspection and maintenance by physically touching parts to feel for vibrations or excessive heat. Close contact was also required for greasing bearings, which he believed was done on operating machinery to promote even distribution of grease.

On the other hand, Chaix's travel way/cleanup theory related to his view that a miner might come into contact with moving machine parts accidentally as the miner walked or worked near them or was engaged in cleanup nearby.

Zielinski rejected the inspection/maintenance theory, at least as applied to MC-1, after hearing testimony from LTM's aggregate manager Brian West. West testified that the practice at LTM was to de-energize, lock out and tag out equipment before performing maintenance. It is not necessary to touch a bearing, because impending failure could be determined visually, by smell or sound. Besides, bearings were typically run to failure. Touching parts was not standard diagnostic procedure, and LTM's employees were not so trained, West said. Zielinski found West, who had about a decade of experience working with conveyors, to be "credible."

He also rejected Chaix's travelway/cleanup arguments in five of the six guarding citations. Zielinski made the point that the equipment had passed previous MSHA inspections, a finding that leaves one wondering why Chaix did not take precedent into account. As Zielinski said several times, "It was Chaix's issuance of the instant citation that created inconsistency in MSHA's enforcement."

The only guarding citation LTM did not resist was for an exposed shaft on a v-belt drive. Zielsinki upheld the citation, apparently because of a roughly four-by-four inch hole in the mesh guarding. It "provided some access to the shaft," which "was essentially flush with the existing guard," he said. However, the judge did reduce the seriousness to non-S&S because he believed an injury was unlikely.

As with all citations operators succeed in overturning in court, the judge's order vacating all but one of the guarding citations was a hollow victory because of the resources the operator had to commit to abate the bogus violations and the added cost of litigation. Specifically, LTM invested nearly $2,000 in unnecessary abatement and another $22,356 to defend itself in court. These costs are exclusive of the government's own investment in wasted legal resources.

Chaix's superior should have questioned these citations from a red hat inspector by going to the site and seeing the conditions first-hand. That he did not would seem to represent a proper inquiry by his superior.