Rules to Live By - December Case SummariesDecember 15, 2016 – Articles
Beginning in February 2010, the Mine Safety and Health Administration rolled out its Rules to Live By Program. This program recognized certain standards both in coal and metal/nonmetal that have been identified by MSHA as to being leading causes of mining fatalities throughout the country.
Each month Dinsmore MSHA attorneys will discuss one coal and one metal/nonmetal standard and the relevant caselaw that has addressed the standard.
Rules to Live By I was based on MSHA’s analysis of 24 standards – 11 in coal mining and 13 in metal and nonmetal mining – frequently cited in fatal accident investigations. These violations fell into 9 different accident categories:
Falls from Elevation
Falls of Roof and Rib
Operating Mobile Equipment (Surface)
Operating Mobile Equipment (Underground)
Lock and Tag Out
Struck by Mobile Equipment (Surface)
Struck by Mobile Equipment (Underground)
Blocking Against Motion
30 C.F.R. § 56.14101(a) – Brakes
(a) Minimum requirements.
(1) Self-propelled mobile equipment shall be equipped with a service brake system capable of stopping and holding the equipment with its typical load on the maximum grade it travels. This standard does not apply to equipment which is not originally equipped with brakes unless the manner in which the equipment is being operated requires the use of brakes for safe operation. This standard does not apply to rail equipment.
(2) If equipped on self-propelled mobile equipment, parking brakes shall be capable of holding the equipment with its typical load on the maximum grade it travels.
(3) All braking systems installed on the equipment shall be maintained in functional condition.
Apex Quarry LLC, 36 FMSHRC 211 (Jan. 2014) (ALJ McCarthy)
MSHA alleged that the operator’s 35 ton haul truck was not maintained in functional condition because the parking brake would not hold the truck either empty or loaded on the steepest grade it was required to traverse at the mine. As a result, MSHA issued a Section 104(a) non-S&S citation, injury to be fatal, negligence moderate, and with a proposed penalty of $425.00.
ALJ McCarthy rejected the operator’s arguments that redundant safety measures, already required under the Mine Act or regulations, did not mitigate the operator’s negligence. Moreover, ALJ McCarthy noted that the size of the truck increased the likelihood that the failure of the brake would result in a fatal injury. Importantly, ALJ McCarthy took administrative notice of the fact that MSHA designated violations of 30 C.F.R. Section 56.14101(a) in its “Rules to Live By” program in upholding the violation as written and assessed.
Sangravl Co, 33 FMSHRC 1242 (May 2011) (ALJ Barbour)
MSHA alleged a violation of 30 C.F.R. Section 56.14101(a)(2) when a haul truck was found to have an inoperable parking brake when the truck was fully loaded and parked on a 8% to 10% grade at the mine.
The operator argued that the parking brake was tested at the beginning of the shift in order to reduce its negligence from moderate to low. ALJ Barbour rejected this argument because the test at the beginning of the shift did not meet the requirements of the standard because the test was conducted when the truck was empty and not when it was bearing its typical load. As a result, ALJ Barbour upheld the enforcement action as issued and assessed.
30 C.F.R. § 75.511 – Low-, medium-, or high-voltage distribution circuits and equipment; repair
No electrical work shall be performed on low-, medium-, or high-voltage distribution circuits or equipment, except by a qualified person or by a person trained to perform electrical work and to maintain electrical equipment under the direct supervision of a qualified person. Disconnecting devices shall be locked out and suitably tagged by the persons who perform such work, except that in cases where locking out is not possible, such devices shall be opened and suitably tagged by such persons. Locks or tags shall be removed only by the persons who installed them or, if such persons are unavailable, by persons authorized by the operator or his agent.
Newtown Energy, Inc., 38 FMSHRC 2033 (Aug. 2016)
MSHA issued a Section 104(d)(1) citation to the operator alleging a violation of 30 C.F.R. Section 75.511 by failing to lock out a shuttle car’s trailing cable cathead while it was being physically inspected and repaired. The administrative law judge affirmed the violation but vacated the S&S and unwarrantable failure findings and reduced the negligence to low.
On appeal, the Commission reinstated the S&S finding the facts established that as many as 10 miners were near the power center at the time of the repair and many of those miners may not have known that the cable repair was being made if a miner accidently or unknowingly plugged the cable back into the power center. The Commission also vacated the ALJ’s decision to vacate the unwarrantable failure finding and remanded the case back to the ALJ to review the unwarrantable failure analysis. Specifically, the Commission noted that the ALJ failed to consider the fact that the operator’s supervisor (and not a rank-and-file miner) was involved in the creation of the violative condition and, as such, is an aggravating factor that should be considered. Finally, the Commission reversed the ALJ’s decision to modify the violation from moderate to low negligence. Again, the Commission found that the operator’s supervisor was aware of the violative condition and (as a certified electrician) failed to recognize the danger posed by the condition.
Regent Allied Carbon Energy, Inc., 37 FMSHRC 830 (Apr. 2015) (ALJ McCarthy)
MSHA alleged a violation of 30 C.F.R. Section 75.511 for performance of electrical maintenance on a shuttle car trailing cable that had not been properly locked and tagged out. The Section 104(d)(1) citation was designated as S&S and the negligence as reckless disregard.
ALJ McCarthy noted that that 30 C.F.R. Section 75.511 imposes three duties on the operator: (1) electrical work is only to be performed by a qualified person or under the direct supervision of a qualified person; (2) the disconnecting device must be locked out and tagged out by the person performing the work; and (3) the locks and tags may only be removed by the person who installed them or by an authorized individual if the person is unavailable.
ALJ McCarthy upheld the reckless disregard finding based on the evidence that the operator’s foreman instructed miners to perform maintenance and electrical work on the cable when he knew the circuit was not locked and tagged out and also because the foreman knew that the miners performing the work were not qualified or certified to perform electrical work. As such, the foreman created a substantial and unjustifiable risk of harm to unqualified miners.