ALJ Dismisses Guarding Citations for Lack of Adequate Notice
- Created: Friday, 08 July 2011 11:17
- Published: Friday, 08 July 2011 11:17
By Ellen Smith
LTM-Knife River Materials successfully had several guarding citations dismissed by Review Commission ALJ Michael Zielinski, after the judge agreed with the company that MSHA did not give “adequate notice” of guarding requirements at its mobile crusher near Coos Bay, Ore.
An MSHA inspector with limited experience cited the operator, in part, for five violations of the guarding standard §56.14107. The standard is broadly worded and some inconsistency in its application has occurred in previous cases before the Review Commission. In this case, the company had never been cited for the alleged “violations.”
In the first citation, MSHA claimed that a pulley on the mobile crusher was not adequately guarded. Raw material was fed into the mobile crusher through a trailer-mounted hopper/conveyor assembly, and a conveyor belt located under the hopper transferred the material to a cone crusher.
The cited area was a two-foot wide passageway between the hoppers and the body of the trailer. In this area was a shaft of a pulley, between two step plates on top of the trailer tires. LTM’s policy was that no one was to enter the area while the crusher was in operation, and there was a gate mounted on the side of the trailer that was closed with a “Do Not Enter” sign.
The MSHA inspector took the photo by partially entering the restricted area and reaching inside an existing “substantial” guard, and the pulley was located in an area that was restricted. The company had a firm policy that entry into the trailer’s travelway was prohibited when the plant was operating, and there was no evidence that the policy was ignored either routinely or occasionally.
The second citation dismissed for lack of adequate notice involved the head pulley and shaft couplings on the “underhopper conveyor.” However, immediately adjacent to the area were steel plates forming a “rock box” to keep materials on the conveyor at the transfer point.
The area was 5 ft. off the ground and 2 ft. on the other side of the 60-in.-high plates and there was no possibility that a miner could come in contact with the parts.
A third citation dismissed by Zielinski involved bottom guarding for conveyor tail pulleys. MSHA’s previous policy was that tail pulleys less than 28-30 in. off the ground did not require bottom-guarding.
Then, sometime in 2007 or 2008, there was an unwritten “rule” that the guideline would be “knee height” or about 24 in., however, there was never an official document, and the company considered the unwritten “knee height” standard to be ambiguous.
The company also noted that its other five to six mines had never received citations issued by any other inspector for the absence of bottom guarding on tail pulleys less than 30 in. off the ground. The ALJ said the company’s “understanding was validated by years of experience and numerous inspections in which guidelines appeared to have been consistently applied.”
A fourth citation was for a factory-mounted guard on a v-belt drive on a screen where the guard extended down to within 20 in. of an adjacent elevated walkway.
MSHA argues that the condition was hazardous “to a foot.” However, in dismissing this citation for a lack of fair notice, the ALJ said it was a reasonable inference that the condition had existed for a number of years, the location was isolated, it was not traveled when the equipment was in operation and LTM had never been cited.
The fifth citation dismissed for lack of fair notice involved a self-cleaning tail pulley on an underscreen conveyor.
The MSHA inspector claimed there were openings in the guard adjustment assemblies “large enough to admit a body part.”
However, the ALJ noted that access to the pulley was impeded by blending chutes that extended down and away from the sides of the pulley guard, the tail pulley was under the trailer deck and recessed 3 ft. away from the sides of the trailer deck, and as with a previous citation, the inspector reached down under an existing guard to take the photo.