By Ellen Smith
Federal Mine Safety and Health Review Commission ALJ Patrick Augustine vacated four equipment citations issued to a Lafarge North American cement plant, after finding that the company did not have fair notice of the alleged violations.
The ALJ also found that MSHA’s own inspector, and MSHA’s expert witness, could not agree to objective criteria to even determine a violation, and because of this the company was denied due process.
The case stems from an MSHA inspection at Lafarge’s cement plant in Davenport, Iowa, in July and August of 2009. Inspector Howard Wood performed inspections on four vehicles at the plant – a Chevy 2500 pickup, two Ford F250 pickups and a Euclid haul truck – trying to determine if the steering linkage and ball joints were within certain specifications.
Wood did not rely on any service manual or vehicle specifications when performing the inspections, and trying to determine that a violation occurred under §56.14100(c). This standard requires that self-propelled mobile equipment be taken out of service if the equipment has defects, which causes continued operation hazardous.
To test the ball joints and linkage, Wood looked under the vehicles with all four tires on the ground and instructed a Lafarge employee to move the steering wheel. Wood relied on measurements set out by the Commercial Vehicle Safety Alliance (CVSA), which requires maintenance of ball joints when there is movement in excess of 1/8 in. “measured with hand pressure only.” Wood found what he considered excessive motion, and cited the company for an S&S violation under §56.14100(c) and MSHA subsequently proposed penalties of $687 for each alleged violation.
However, at the hearing, another MSHA employee, and the agency’s expert witness, Ron Medina, said the CVSA guidelines were not applicable to any of the trucks cited by Wood. Medina testified that the CVSA guidelines only applied to vehicles and heavy equipment in excess of 26,000 lb., and Medina testified that the 1/8-in. standard used by Wood was not applicable. In addition, Medina could not state any measurement or standard that would be considered reasonable to test the ball joints.
While Medina did address tests, methods and measures set forth in each vehicle’s service manual, the ALJ noted that none of these tests were used by Wood when he issued the citations. “The attempt to make these service manuals applicable after-the-fact to support the issuance of citations does not provide [Lafarge] with objective notice of the criteria applicable in order to assess compliance with the cited standard before the issuance of the citations.”
The ALJ rhetorically asked and stated in his opinion, “If MSHA’s employees could not agree by the time of trial on the proper basis and standards for examining vehicle ball joints, how could [Lafarge] have proper notice of the appropriate standard of compliance?”
In dismissing the citations against Lafarge, ALJ Augustine said MSHA must demonstrate consistent and objective measure of establishing a violation of the cited standard. “When the inspector and [MSHA’s] expert witness disagree on what the consistent and objective criteria should be in order to determine compliance, the [Commission] finds it a violation of fair notice and due process to hold the [company] to a moving target.”
30 CFR § 56.14100
Safety Defects; Examination, Correction and Records
Safety Devices And Maintenance Requirements
(a) Self-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift.
(b) Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.
(c) When defects make continued operation hazardous to persons, the defective items including self-propelled mobile equipment shall be taken out of service and placed in a designated area posted for that purpose, or a tag or other effective method of marking the defective items shall be used to prohibit further use until the defects are corrected.
(d) Defects on self-propelled mobile equipment affecting safety, which are not corrected immediately, shall be reported to and recorded by the mine operator. The records shall be kept at the mine or nearest mine office from the date the defects are recorded, until the defects are corrected. Such records shall be made available for inspection by an authorized representative of the Secretary.