Safety Defects, Examination, Correction and Records: The Correlation Between 30 C.F.R. Section 56/57.14100 and Pre-Operational ExaminationsMarch 18, 2016 – Articles
Pre-operational examinations of mobile equipment are a cornerstone of most miners’ daily activities. It goes without saying that performing a pre-operational examination is a necessary duty to identify defects on any equipment, machinery and tools that affect safety before operating the equipment. For some mine operators, however, an unwanted consequence of performing these routine examinations is what an MSHA inspector may find in these records during quarterly inspections.
30 C.F.R. Sections 56.14100 and 57.14100 are nearly identical (with the exception of an added comma in 30 C.F.R. Section 57.14100(d)) and provides as follows:
(a) Self-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift.
(b) Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.
(c) When defects make continued operation hazardous to persons, the defective items including self-propelled mobile equipment shall be taken out of service and placed in a designated area posted for that purpose, or a tag or other effective method of marking the defective items shall be used to prohibit further use until the defects are corrected.
(d) Defects on self-propelled mobile equipment affecting safety, which are not corrected immediately, shall be reported to and recorded by the mine operator. The records shall be kept at the mine or nearest mine office from the date the defects are recorded, until the defects are corrected. Such records shall be made available for inspection by an authorized representative of the Secretary.
These standards provide affirmative duties on the miner operating the equipment, machinery and tools. A failure to conduct the examination, or to improperly conduct the examination, subsequently falls on the mine operator in the form of citations, orders, civil penalties, and other possible sanctions against mine operator agents associated with MSHA investigations. Namely, each and every mine operator is to (1) perform a pre-operational inspection, (2) correct any defects that affect safety, (3) take equipment, machinery, and tools out of service or tag-out the equipment, machinery or tools if continued operation of the equipment, machinery or tools (with the defect) creates a hazard, and (4) if defects affecting safety are not corrected immediately to report and record such defect until corrections are made. The mandates in the standard do not appear overly complicated. In practice, however, confusion exists at times between operators and MSHA with respect to what the standard requires in a given situation.
The following example is perhaps instructive. An equipment operator performs a pre-operational inspection of a surface haul truck and finds an inoperable headlight. He reports the defect by placing an “X” next to a “headlights” box on the pre-operational card. The “X” signifies the condition is a defect. The equipment operator notes the condition but does not believe it affects safety so he does not further report the condition and continues to operate the truck.
Several hours later MSHA arrives and examines the haul truck as part of an E01 inspection. The equipment operator provides his pre-operational examination report listing the headlight as defective. The inspector notices the headlight was not replaced and shuts the haul truck down immediately and threatens to issue an unwarrantable failure to comply with 30 C.F.R. Section 56.14100 arguing the mine operator knew of the condition and failed to have it corrected in a timely manner. This hypothetical is not unusual in the metal/nonmetal industry today as MSHA continues to ratchet up enforcement in the wake of increasing accidents and fatalities.
When we apply the mandates of 30 C.F.R. Section 56.14100 to this fact pattern it raises several important questions. First, was the inoperable headlight a defect that affects safety requiring it be corrected in a timely manner to prevent the creation of a hazard? As with any MSHA dispute answering this question begins with a review of the facts. In our hypothetical the mine operator argues the haul truck was operated during daylight hours and therefore the defective headlight did not affect safety and did not need corrected in a timely manner because there was no chance of creating a hazard. On the other hand MSHA, who often finds conditions hazardous, will argue the defect did affect safety because the haul truck was not limited to daytime use. Thus, a timely correction of the defect would have eliminated the creation of a hazard.
One of the problems with analyzing issues under 30 C.F.R. Sections 56/57.14100 is neither of the standards define the terms “defect” and “hazard.”1 Likewise, the terms are not defined in the Mine Act. The fact is many terms appearing in MSHA regulations are not defined. This lack of clarity is fertile ground for the MSHA inspector to issue enforcement actions by showing subjective interpretations of a term or phrase. Fortunately, this subjectiveness is tempered by the Federal Mine Safety and Health Review Commission’s (“Commission”) application of the reasonably prudent person test.2 Unfortunately, there is not great deal of awareness of the reasonably prudent person test in the trenches of daily mining and regulatory inspections. In reality, many mine operators feel helplessly constrained by MSHA’s self-serving interpretations of ambiguous terms and phrases. In our hypothetical, the reasonably prudent person test permits the operator to take a stand against the MSHA inspector’s subjective interpretation by utilizing the learned opinion of the haul truck driver (i.e. the reasonably prudent person) and also “the circumstances at the operator’s mine.” BHP Minerals Int’l, Inc., 18 FMSHRC 1342, 1345 (Aug. 1996).
Our analysis above assumed the defective headlight did not affect safety. What happens if the missing headlight does affect safety? When this occurs the operator has additional obligations under 30 C.F.R. Section 56.14100. First, the mine operator must correct the condition in a timely manner to avoid the creation of a hazard. Second, when the defect makes continued operation of the haul truck hazardous to persons it shall be taken out of service, placed in a designated area posted for that purpose, or a tag or other effective method of marking the defective items shall be used to prohibit further use until the defects are corrected.
If the pre-operational report on our hypothetical haul truck shows an “X” next to “headlights” most MSHA inspectors will assume it is a defect affecting safety and therefore require that it be corrected in a timely manner. Reasonable minds may differ over what constitutes a reasonable amount of time to correct a defect and it often depends on the nature of the defect. However, one thing is certain, allowing defects listed on a pre-operational report to linger without corrections is a Venus flytrap for citations and orders under both 30 C.F.R. Sections 56/57.14100.
As enforcement in this area continues to rise mine operators are wise to revisit their procedures for pre-operational inspections of equipment, machinery and tools. Equipment, machinery, and tool operators should be frequently reminded of the importance of the inspection process. Operators should also remind individuals filling out pre-operational reports that the inspections require more than simply checking a series of boxes on a form and turning it over to a supervisor. In this vein, mine operators may want to consider a series of short training sessions on the requirements and obligations under 30 C.F.R. Sections 56/57.14100.
Finally, mine operators are wise to avoid the use of pre-operational reporting documents which allow the equipment, machinery, or tool operators to conduct multiple inspections before the records are submitted. In these cases pre-operational report forms listing defects that affect safety can go uncorrected for extended periods of time. MSHA inspectors, particularly transplants from coal to metal/nonmetal, are well schooled in the art of reviewing examination records prior to the inspection and not after. Clever MSHA inspectors use the operator’s pre-operational records to educate themselves on the defects present on the equipment long before the inspection occurs. These situations are rich soil for the planting of unwarrantable failure enforcement actions, elevated penalties, and special investigations under Section 110 of the Mine Act.
1Collectively, 30 C.F.R. Sections 56/57.2 list approximately 185 definitions.
2In order to avoid due process problems stemming from an operator’s asserted lack of notice, the Commission has adopted an objective measure (the “reasonably prudent person” test) to determine if a condition is violative of a broadly worded standard. That test provides:
[T]he alleged violative condition is appropriately measured against the standard of whether a reasonably prudent person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the mining industry, would recognize a hazard warranting corrective action within the purview of the applicable regulation.
Alabama By-Products, 4 FMSHRC 2128, 2129 (Dec. 1982); see also Asarco, Inc., 14 FMSHRC 941, 948 (June 1992). As the Commission stated in Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990), “in interpreting and applying broadly worded standards, the appropriate test is not whether the operator had explicit prior notice of a specific prohibition or requirement, but whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard” and concluded that a hazard existed. Moreover, the reasonably prudent person is based on an “objective standard.” U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983). The Commission has recognized that the various factors, bearing upon what a reasonably prudent person would know and conclude, include accepted safety standards in the field, considerations unique to the mining industry, and the circumstances at the operator’s mine. BHP Minerals Int’l, Inc., 18 FMSHRC 1342, 1345 (Aug. 1996). The Commission has explained that the reasonably prudent person test must be based on conclusions drawn by an objective observer with knowledge of the relevant facts. U.S. Steel Corp., 5 FMSHRC at 4-5. It follows that the facts to be considered must be those which were reasonably ascertainable prior to the alleged violation. Moreover, the test must be applied based on the totality of the factual circumstances involved, not just those which tend to favor one party or the other. Asarco, Inc., 14 FMSHRC at 949.