Aggregates Manager

May 2014

Aggregates Manager Digital Magazine

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35 AGGREGATES MANAGER May 2014 ROCKLAW issued under 30 C.F.R . § 56.14100(b) for allegedly failing to adequately inspect a front-end loader with a defective brake light [see Beverly Materials, LLC, 35 FMSHRC 88 ( Jan. 14, 2013) (ALJ Moran)]. The inspector issued the citation after initially observing the front-end loader in one location and then observing it at a new location about an hour and 20 minutes later. The operator explained the reason for the change in location was that the front-end loader had to be moved to the location of the steepest grade the machine would travel to test the parking brake during the pre-shift exam. Based upon this explanation, the ALJ found the front-end loader was not in service, and the "only credible con - clusion" was that the loader was moved to facilitate the pre-shift exam. The cita- tion was vacated because the loader had not yet been put into operation with the defective brake light. The decision in Beverly Materials is on appeal to the Federal Mine Safety and Health Review Commission (Commission), and there will continue to be uncertainty around this issue until the Commission issues its ruling on ALJ Moran's decision. The Federal Mine Safety and Health Act of 1977 (Mine Act) could have easily declared equipment be main - tained defect free "at all times." The regulations could have taken the same approach. Neither one has such a dra- conian rule. Instead, the regulations re- quire an inspection be conducted prior to use and that defects be addressed in a reasonable time [see Giant Cement Co., 13 FMSHRC 286 (Feb. 25, 1991) (ALJ Merlin) (§ 56.14100(b) does not pro- hibit defects, but requires only that de- fects be corrected in a timely manner)]. MSHA's aggressive stance effectively requires all equipment to remain free from defects at all times unless tagged out of service. This view should be rejected by the Commis- sion. By assuming miners will not follow the most basic of safety precautions, MSHA unreasonably burdens operators with alleged violations that may never come about. AM 7H[W,1)2WRRUYLVLWZZZDJJPDQFRPLQIR

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