Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/85635
by Michelle Witter Rock Review Commission ruling increases the burden on mines to maintain automatic warning devices on mobile equipment. DECISION An Alarming I n a case involving coal standards, the Federal Mine Safety and Health Review Commis- sion (Review Commission) issued a holding overturning a decision by Administrative Law Judge (ALJ) Feldman that may also have implica- tions for metal/non-metal operations. The Review Commission decision in Nally and Hamilton Enter- prises, Inc. sets strict expectations for the mainte- nance of automatic warning devices, such as back- up alarms, on mobile equipment. Although the case involved a surface coal mine, the regulation at issue in the case is nearly identical to a Part 56 standard. Because the language is similar, it is im- portant for metal/non-metal mines to familiarize themselves with the Review Commission's holding in order to avoid unwelcome surprises during an MSHA inspection. Michelle Witter is an associate in Jackson Kelly PLLC's Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303- 390-0036 or mwitter@ jacksonkelly.com. 46 The case involved an alleged violation of 30 C.F.R. §77.410(c). This section addresses auto- matic warning devices on mobile equipment. The MSHA inspector determined that the operator violated the portion of the standard which re- quires that "warning devices shall be maintained in functional condition." Metal/non-metal mines are subject to a similar standard at 30 C.F.R. § 56.14132(a), which requires that "manually op- erated horns or other audible warning devices provided on self-propelled mobile equipment as a safety feature shall be maintained in functional condition." The Review Commission and ALJ Feldman disagreed over what it means to "main- tain" a back-up alarm in functional condition. The facts of the case are fairly straightforward. Nally and Hamilton Enterprises, Inc. (Nally) oper- ates a surface coal mine in Bell County, Ky. As part of its operation, Nally uses lube trucks. Lube trucks carry liquids such as fuel, antifreeze, and oil to ser- vice the operator's mobile equipment. AGGREGATES MANAGER January 2012 An MSHA inspector discovered that the back-up alarm on one of the lube trucks was not function- ing. The inspector designated the violation as "sig- nificant and substantial" (S&S). The back-up alarm was working when it was inspected during the pre- shift examination, but in a classic "Murphy's Law" scenario, ceased working before it was examined by the MSHA inspector. The operator was unaware that the alarm had stopped working until the in- spector issued the citation. ALJ Feldman vacated the citation. He found that the Secretary had not established that Nally had failed to maintain the back-up alarm in functional condition. The ALJ felt it was important to con- sider how long the alarm had been disabled when making a determination as to whether the operator had failed to maintain the alarm. He stated that "[f]undamental fairness dictates that a mine opera- tor must be given a reasonable period of time to address defects after they are noted by the pre-shift examiner." The Review Commission, however, soundly rejected ALJ Feldman's analysis. It determined that, because the cited standard requires the duty to "maintain" the back-up alarms, the "warning devices shall be capable of performing on an unin- terrupted basis at all times" (emphasis in original). The Review Commission stated that its holding is consistent with its earlier decision in Lopke Quarries, in which it determined that the duty to "maintain" imposes a continuing responsibility on operators to ensure that safety alarms do not fall into a state of disrepair. It reasoned that, because the alarm was not working on Nally's lube truck at the time of the inspection, the alarm was not being "preserved from failure or decline." In other words, not only must an operator fix an alarm that is bro- ken, but an operator also has a duty to prevent an