By Ellen Smith
An operator cannot be held to the strict liability provisions of the Mine Act, where the wording of two standards would offer conflicting results.
ALJ L. Zane Gill granted Wake Stone Corp.’s motion for summary judgment to dismiss two citations where MSHA claimed the operator violated §56.14132(a) where horns on equipment did not work, but the equipment was not in operation at the time the MSHA inspector cited the company for the malfunctioning horns.
The standard requires that “manually-operated horns or other audible warning devices provided on self-propelled mobile equipment as a safety feature shall be maintained in functional condition.”
However, §56.14100(a) requires that before the equipment is used during a shift, it “shall be inspected by the equipment operator before being placed in operation on that shift.” In this case, the equipment at the company’s Nash County Quarry in Nash County, N.C., was not being used and therefore had not been pre-shifted. It was not tagged out, because the company did not know of the defective horn until it conducted a pre-shift examination in front of the MSHA inspector, who then cited the company after the malfunctioning horn was discovered during the examination.
Interpreting §56.14132(a) “in such a strict manner would be contrary to Congress's intention when it drafted the Act and, in my view, contrary to the overall intent of the Act to protect miners' safety,” Gill wrote, noting that it’s “unrealistic to expect that a horn, or any piece of equipment, will last forever.
“To interpret the Act as the Secretary wishes would diminish the operator's motivation to conduct a thorough examination of equipment, because the operator loses an incentive.”
MSHA argued that the vehicles should have been tagged out of service. Since they were not tagged out, then the vehicles were eligible for inspection and MSHA could reasonably cite any violations found.
To interpret the standards in any other fashion would allow operators to “escape strict liability for the alleged violations by declaring pre-shift examination and tagging the vehicles out of service while the inspector stands by.”
While “this is a reasonable concern that should not be taken lightly,” Gill said, “it is important to also encourage thorough pre-shift examinations and I believe to place strict liability in this situation would have the opposite effect.”
Gill said he was not convinced that Wake Stone “was trying to ‘escape’ strict liability by feigning the need for a pre-shift examination, and/or that the vehicles ‘might be used.’ I decline to construe the conflicting legal standards in such a way as to effectively write Section 56.14100, the maintenance provision, out of the Regulations or seriously diminish its effect.”
In a footnote, Gill wrote that his ruling “does not trivialize or diminish §56.14132(a). Instead it recognizes that §56.14132(a) and §56.14100 can and should coexist.”
30 CFR § 56.14132
Horns and Backup Alarms
(a) Manually-operated horns or other audible warning devices provided on self-propelled mobile equipment as a safety feature shall be maintained in functional condition.
(b)(1) When the operator has an obstructed view to the rear, self-propelled mobile equipment shall have
(b)(1)(i) An automatic reverse-activated signal alarm;
(b)(1)(ii) A wheel-mounted bell alarm which sounds at least once for each 3 ft. of reverse movement;
(b)(1)(iii) A discriminating backup alarm that covers the area of obstructed view; or
(b)(1)(iv) An observer to signal when it is safe to back up.
(b)(2) Alarms shall be audible above the surrounding noise level.
(b)(3) An automatic reverse-activated strobe light may be used at night in lieu of an audible reverse alarm.
(c) This standard does not apply to rail equipment.