Aggregates Manager

May 2014

Aggregates Manager Digital Magazine

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33 AGGREGATES MANAGER May 2014 ROCKLAW Rock Administrative law judges take different viewpoints on pre-shift examinations and MSHA inspections. PERSPECTIVES by Dana M. Svendsen Dana M. Svendsen is an associate in Jackson Kelly PLLC's Denver office, where she practices with the Occupational Safety and Health Practice Group. She can be reached at 303-390-0011 or via email at mailto:dmsvendsen@ Differing D uring Mine Safety and Health Adminis- tration (MSHA) inspections, disputes between operators and inspectors can arise over whether an observed condi- tion is a defect or whether a piece of equipment is ready for use. Under the Mine Safety and Health regulations, an operator must conduct a pre-shift examination of all mobile equipment prior to using the equipment during a shift (see, e.g., 30 C.F.R . §§ 56/57.14100, 77.1606). Any defects observed must be corrected in a timely manner, and defective equipment must be removed from service. Several decisions have reached differing conclusions on the validity of issued citations when the existence of a defect is acknowledged, and the operator argues that the defect would have been identified and corrected during the pre-shift exam — but no such exam had yet taken place. Some administrative law judges (ALJs) have adopted MSHA's strict liability approach that the existence of a defect merits a citation un- less the equipment has been tagged out. Other ALJs have found that the operator must have an opportunity to conduct a pre-shift exam. W hether a violation has occurred often turns on what it means to assume continued normal mining operations. Typically, MSHA argues this means the equipment would be put into use, while operators argue that the normal course would be to first inspect the machinery. MSHA's view is problematic for operators because it as- sumes the existence of a separate violation, i.e., failure to perform an adequate exam — an exam that has yet to be conducted — to show that the violation has occurred. This effectively shortcuts the government's burden to prove that the opera- tor knew or should have known about the alleged defect and did nothing to correct it. In a recent decision, ALJ Rae rejected this ap- proach by MSHA and vacated a citation issued to Martin Marietta for inoperable headlights on a steer skid loader [see Martin Marietta Materi- als, Inc., Docket No. CENT 2013-332-M (Feb. 18, 2014) (ALJ Rae)]. It was undisputed that the lights had been working when the loader was operated the day before, but on the day of the inspection, the lights did not function. It was also undisputed that, at the time of the inspection, the operator had not yet conducted a pre-shift exami- nation, and the loader was not in use. At the time of the inspection, the skid steer loader was parked in an equipment shop, though it was not tagged out. ALJ Rae rejected MSHA's argument that the operator either violated 30 C.F.R . § 56.14100 (b) (failure to correct defects in a timely manner) or 30 C.F.R . § 56.14100(c) (failure to tag out equip- ment not immediately corrected). She found there was no evidence that the operator would have failed to identify the headlight defect prior to putting the skid steer loader into operation. There was no reason to assume that the operator would not have inspected, identified, and cor- rected the defect prior to putting the equipment back into use, and because there was no evidence of "continued operation," there was no violation. In a similar case, ALJ Moran vacated a citation

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