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OPERATOR TURNS BACK PART 46 CHALLENGE

MSHA appears to have served notice of its intent to include fuel truck delivery drivers under the full panoply of Part 46 training requirements.

On April 14, inspector James Hines cited Wisconsin limestone producer Milestone Materials, Division of Mathy Construction, for failing to ensure a fuel deliveryman had received newly hired experienced miner training.  The company appealed and following a hearing before a judge June 24, MSHA dropped the citation.

However, similar tickets may be on the way elsewhere.   This is the conclusion of attorney Adele Abrams after government officials noted that their decision to vacate was unique to that case.  Abrams represented Milestone. 

MSHA claimed the presence at the No. 66 Mine of Greg Hall, a driver working for Midwest Industrial Fuels Co., was "frequent and recurring."  The classification would render Hall a "miner" for purposes of the training regulation.  The Agency argued that Hall's duties required him to move unaccompanied throughout the six-person operation, thus exposing him to mine hazards. "Mr. Hall is a miner," MSHA's attorney, Rafael Alvarez, contended.

Abrams countered that Hall does not satisfy the definition of a miner.  Under the regulation, an individual is not a miner if, among other things, he or she is employed by a vendor, is a delivery worker, and drives a commercial over-the-road fuel truck.  Hall falls under all three of these exemption criteria, she said.

She also asserted that the "frequent and recurring" classification criteria only apply to service or maintenance workers, of which Hall is neither.  Moreover, Hall's visits to the mine could not be considered frequent and recurring because he is present at the mine only about two weeks out of a year for no more than 30 minutes at a time.  "You can’t impose up to a 24-hour training requirement on someone who may only be at a mine for three hours in an entire year," she argued.   

If MSHA lives up to its threat, the last word on this matter has yet to be spoken.