Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/777939
AGGREGATES MANAGER / February 2017 49 new interpretation before issuing a citation. Therefore, the citation was in violation of due process. The various ALJs who have heard the cases have agreed with the operators' positions and found that the Secretary's attempt to conflate 'work' and 'travel' was inconsistent with the regulatory scheme, was overly broad, and would im- permissibly expand the requirement to conduct workplace examinations into travelways and other areas where work is not performed. Based upon this finding, the ALJs have concluded that the Secretary failed to meet his evidentiary burden of establishing that these elevators were working places because the Secretary merely presented evidence that miners traveled in the elevators daily. The ALJs con- cluded that mere travel or use of the elevators did not amount to work. Independent of these determinations, the ALJs also concluded that MSHA failed to give proper and adequate notice of its change in interpretation, therefore violating the operators' due process rights. The ALJs con- cluded that such 'legislation through enforcement' was impermissible and vacated the workplace exam citations. See, for example, Ash Grove Cement Co., Docket No. WEST 2014-963 (ALJ Barbour, Aug. 4, 2016). Since MSHA reissued its program policy letter regarding the workplace examination regulation in July 2015, operators have seen an increase in the frequency of citations being writ- ten under §§ 56/57.18002(a). Pro- gram Policy Letter No. P15-IV-01. It appears that the agency has looked for opportunities to expand the appli- cation of the workplace examination standard by applying the standard to areas that traditionally have not been considered 'working places' in a mine. Operators have seen workplace examination citations issued not only as to elevators, as discussed here, but also to offices, storage rooms, and travelways. Operators should be aware that current case law does not always support these broad, new in- terpretations of what constitutes a working place in a mine. Moreover, MSHA's proposed workplace examination regula- tion, which would require examinations to occur before work begins, did not redefine or add any clarity to the current definition of working place. As a result, it is recommended that a mine operator gather information early to support any potential challenges to workplace examination citations believed to have been incorrectly issued. During inspections or closing conferences, questions and discussions with inspectors as to why an area is being considered subject to the workplace examina- tion standard are helpful if a challenge to a citation is filed. Further, a mine operator should seek to gather facts and documents supporting its position that the area being chal- lenged does not meet the definition of a working place. This type of support would include proof of the lack of 'work' performed presently, in the past, or in the future in the area at issue. AM 1.888.862.7461 www. beka-lube.com BEKA - LUBRICATION SPECIALISTS SINCE 1927 BEKA auto-lube is built to take the bumps and grinds of a hard-working life on the road or off. Give your fleet the solution that keeps them on the job. • Cast aluminum base withstands impacts and hot/cold cycles without leaking • No springs! Eccentric gear drive resists wear, fatigue and cold • Consistently precise grease dosing Find out why industries are choosing today's best-built auto-lube systems. Call 1.888.862.7461 or email us at info@beka-lube.com. BEKA SYSTEMS TAKE A THUMPIN'& KEEP ON PUMPIN' SEE US AT CONEXPO Booth # G72213 026-141A AGG Manager 4.5x4.5 4C.indd 1 2017-01-10 9:04 AM Untitled-21 1 1/12/17 1:39 PM