Many Thanks to Jim Sharpe, Sharpe Media for permission to use this vital article from the June 2011 Sharpe's Point Newsletter!

ALJs: Operators Have Citation Free Right to Preshift Inspection Under All Parts of 56.14100!

A judge has determined that MSHA must allow an operator to perform a pre-operational examination of self-propelled mobile equipment before its inspectors can cite for malfunctioning safety devices. The ruling follows an earlier decision that affords operators the opportunity to make repairs to parts that fail while the equipment is operating.

The May 6 ruling by Administrative Law Judge (ALJ) L. Zane Gill might be encouraging to mine operators, but their euphoria should be tempered by the fact that MSHA has appealed the earlier decision to the Federal Mine Safety and Health Review Commission. That case might be heard this year, and the outcome is far from certain. 

Enforcement officials and operators have tussled for years over the circumstances that would allow MSHA to cite for non-functioning safety equipment on mobile equipment fairly.  Operators are legally required to examine equipment before it is placed into service on a shift, referred to as a "pre-shift" or a "pre-op," and either perform any needed repairs immediately or remove the equipment from service for repair later. This reasoned approach is designed to assure miners are protected from potentially unsafe equipment.

But because the system can be abused, MSHA has taken steps to minimize shady practices.  That has raised hackles among some operators, including North Carolina-based Wake Stone Corp., who claim the Agency's measures overstep its authority.  Gill's ruling vacated two citations Wake Stone had received in 2009 at its Nash County Quarry for inoperable service horns on a dozer and an excavator.

The alleged abuse takes at least two forms.  In some instances, a mine's pre-op evaluator performs a perfunctory inspection that risks missing defective parts because essential checks of performance were not done.  There can be no certainty, for example, that horn or lights are working unless they are activated.  In other instances, an operator tells an inspector seeking to inspect the vehicle that it has not been "pre-opted," even though, unbeknownst to the inspector, it has been in operation during that work shift.

As countermeasures, MSHA has taken the position that a vehicle on the so-called "ready line" is available for immediate use. Thus, according to the Agency's Metal/Non-Metal inspection handbook, inspectors must inspect it unless it is tagged or marked out of service.  Out-of-service equipment may also be located in a designated area posted for that purpose.  This equipment is not to be inspected if it is tagged or marked out of service and the defect is noted.  However, there is no prohibition against inspecting out-of-service vehicles "if no tag or marking exists," and the inspector can conduct the inspection without risking injury.

ALJ Gill's Decision

Wake Stone resisted an inspector's request to inspect the two vehicles because it asserted no pre-op had been performed.  During the pre-op, the horns were found inoperable, prompting the inspector to cite the alleged violations under the horn standard, 56.14132(a). The company appealed. Before Gill, MSHA argued that the "plain meaning" of the horn standard is that if a horn fails, that is a violative condition because the failed part is de facto evidence it has not been maintained. 

Gill said no.  He argued that, in drafting the Mine Act, Congress did not intend for the horn standard to be enforced in isolation from the four general provisions of 56.14100.  In summary, these obligate an operator to find hazards, fix them promptly, take the affected vehicle out of service if prompt repair is not possible, and report/record defects that are not repaired in a timely manner.  Encouraging operators to find and fix is precisely what Congress had in mind, Gill contended. "Not punishing operators for finding malfunctioning equipment during pre-shift examinations is an incentive to thoroughly conduct such examination," he said.

MSHA also brought up the dodge, mentioned earlier, of operators allegedly trying to escape strict liability by feigning that a pre-op was needed, then tagging out the equipment while the inspector looks on.  In that context, the government cited a 2002 case in which the presiding ALJ, quoting the Review Commission, said that standards like the provision for horns must be complied with      if the equipment might be used on mine property [our emphasis]. "Only if equipment has been effectively taken out of service can  an operator avoid the consequences of defective conditions," ALJ Michael Zielinski wrote.

Gill conceded his decision ran counter to that rationale, but nonetheless held to his position that he would not "construe the conflicting legal standards in such a way as to effectively write Section 56.14100, the maintenance provision, out of the Regulations or seriously diminish its effect." In a footnote, he added that his ruling does not diminish 56.14132(a) either, rather it recognized that the two standards "can and should co-exist." 

If MSHA chooses to appeal Gill's ruling, it will most certainly be on the basis of the Commission language Zielinski referenced.

But it may not have to.  The Agency has already appealed a 2009 ruling vacating a citation for a defective backup alarm on a lube truck at Nally & Hamilton Enterprises' Chestnut Flats surface coal mine in Kentucky. In that case, an inspector observed the condition while the vehicle was operating in the pit and after it had been pre-opted.  ALJ Jerold Feldman threw out the ticket after the inspector testified he believed the alarm had first begun to malfunction during the shift.  "Fundamental fairness dictates that a mine operator must be given a reasonable period of time to address defects after they have been noted by the pre-shift examiner . . . ," Feldman wrote.

The two cases are similar because, in both, the judges ruled the operator must be given an opportunity to fix a defective part, whether it be found on the pre-op or after being discovered while the vehicle is in operation.

The immediate take-away from the Gill decision is that operators could now insist they have the legal right to perform a pre-op examination on any piece of mobile equipment, whether on the ready line or tagged out, and repair any defects before MSHA may inspect it.  Feldman's decision indicates that operators also have the right to repair a defect while the vehicle is in service.  His ruling applies when the defective part was found to be working on the pre-op, and the operator promptly addressed the problem after noticing it. However, we urge you to seek guidance from competent legal counsel before acting on this advice.