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Complaints And Inspections


MSHA routinely inspects mines twice a year for active surface mines; four times a year for underground. Additional inspections can be triggered. Triggers

ADELE ABRAMS

MSHA routinely inspects mines twice a year for active surface mines; four times a year for underground. Additional inspections can be triggered. Triggers include accidents that require immediate notification to MSHA. ìImmediately reportableî now means within 15 minutes Ö and failure to do so now carries a $5,000 minimum civil penalty under the 2006 MINER Act.

However, another common trigger for inspections is employee (or former employee) complaints to MSHA. One such complaint, by a former miner, set off the ìInspection from Hellî for a Kansas limestone operator, encompassing all five of its quarries (three of which operate intermittently). The trial involved two solicitors of labor and a ìCLRî (the mine operator represented itself), where more than 100 citations and 16 petitions for assessment were considered in a consolidated hearing before ALJ Manning, Secretary of Labor v. Nelson Quarries Inc. (ALJ, April 2008).

COMPLAINTS AND CITATIONS

The disgruntled former miner had filed ìgeneralî hazard complaints, stating that ìNelson Quarries' properties are unsafe to everyone who works in themî and ìelectricity is bad at all plants.î There also were specific complaints lodged concerning the handling and storage of explosives and lack of training related to a non-fatal truck accident.

ELECTRIC

Because the Topeka field office lacked an electrical inspector, one was brought in from Salt Lake City to inspect the electrical systems at all five plants. Not surprisingly, quite a few of the 100 citations involved violations of MSHA's electrical standards, and focused on conditions such as unlabeled circuits, inadequate bushings, bad grounding, or resistance, cables with slices in the outer coverings, and exposed wires within cabinets in the MCC. Although Nelson argued that these conditions had never been cited by MSHA before, Judge Manning dismissed that theory because of the fact that the company had not been cited for the conditions simply because the ìfacilities had never been inspected by an MSHA electrical inspector.ì Many of the citations were upheld as significant and substantial (S&S).

GUARDS

Multiple guarding citations also were issued at the quarries. As a starting point, because the company argued that the guards had not been required in previous citations, the judge examined the preamble to the guarding rule as well as MSHA's Program Policy Manual and its Guide to Equipment Guarding brochure (none of which are binding as a matter of law). The judge found that MSHA intended guards to protect against both accidental contact as well as deliberate or purposeful actions and, therefore, that the regulated community had notice that the guarding standards would be broadly applied.

Although some of the cited conditions were on stationary equipment, others involved portable plants that are set up repeatedly at different locations. Therefore, it was difficult to determine if conditions were precisely the same as in previous inspections. Not only were conveyor rollers and pulleys cited, many of the guarding citations were issued relative to alternators and fans in mobile equipment. Judge Manning upheld virtually all of these citations, although most were considered non-S&S.

MISCELLANEOUS DEFECTS

Equipment defects also were heavily cited during the complaint-based inspection. Among the ìdefects affecting safetyî were missing windshield wipers, inoperable lights and backup alarms, parking brakes, tethers, door handles and broken windows. Several S&S citations were upheld on explosives storage, as well as use of explosives by untrained personnel.

In addition to the guarding standards, other rules cited included those related to hazard communication (missing labels on diesel tanks, no-smoking signs), safe access (although the judge did vacate one citation where the inspector had cited as ìinadequateî a ramp to a trailer set up for the mine's pet cat to use), berms, missing or inadequate railings, and a few ìnitpickingî issues such as the lack of a phone and emergency numbers posted (mitigated in terms of negligence by the fact that many cell phones were on site). Other issues included lack of a bulletin board (for posting notices and citations), and some dried grass within 25 feet of an explosives magazine (although most of the grass was green), and used oil and rags stored in a plastic bucket.

SILICA

One citation was upheld for a miner's overexposure to crystalline silica. The citation was characterized as S&S based on a single-shift silica dust survey that was elevated above the threshold limit value. The judge noted that the mine operator did not provide respiratory protection and no program was in place. The operator had never done its own sampling and the last dust survey by MSHA had been conducted five years earlier. Moreover, the miner operated a truck with the windows down and no air-conditioning, increasing his exposure to silica.

Judge Manning stated: ìThere was a reasonable likelihood that the hazard contributed to the violation and would result in an illness of a reasonably serious nature.î The judge did, however, vacate a citation issued under 30 CFR ß 56.9315, where the inspector claimed that ìvisible dustî was coming from the plant ó the wind was blowing at 25 mph at the time of the inspection. Judge Manning credited the operator's testimony that the plant frequently closes down in windy weather, or when there are visibility problems, and that the roadways are normally kept wet by haul trucks and loaders.

HIGHWALLS

The judge also vacated two ground-control citations issued by the inspector for highwall conditions that were deemed hazardous. The MSHA personnel claimed that the mining method also was inadequate because the mine did not own equipment large enough to scale the walls (which ranged from 30 to 40 feet high). The judge found that the operator had barricaded off the area adequately, and correctly noted that scaling is not required by the cited standards if there are berms or sufficient rock under any loose or unconsolidated material to keep miners out of the danger zone. Scaling must be performed, however, if miners must work or travel under unconsolidated material on highwalls.

VACATED CITATIONS

In all, either by ruling or consent between the parties, about one-quarter of the citations were vacated, and total penalties were $11,090 in this case. Worth noting is the fact that these penalties were issued prior to MSHA's overhaul of Part 100, and today a similar inspection's cost could easily exceed $100,000. Moreover, the Section 104(d) citations were not subject to flagrant assessments, nor any statutory minimum penalties, as they would be under current law. Many of the ìhighî negligence findings came directly as the result of statements made to inspectors by the ìforemenî who did not regard themselves as ìagentsî but whose negligence was ultimately imputed to the mine operator for aggravated findings.

CITATIONS NEED NOT BE FOR SAFETY

Nelson Quarries raised, as a general issue, the fact that many of the citations either did not involve a safety hazard or that the secretary had not demonstrated that accidents could occur. The judge observed: ìThe [Mine Act] imposes no general requirement that a violation of MSHA regulations be found to create a safety hazard in order for a valid citation to issue. If conditions existed which violated the regulations, citations [are] proper.î This is because the courts have uniformly held that mine operators are ìstrictly liableî for violations and, when a violation occurs, the operator is automatically assessed a civil penalty. So, unless a standard specifically provides that a safety hazard must be shown, this is not a factor when evaluating a citation. On the other hand, negligence and the degree of hazard are considered when assessing the penalty under Section 110(i) of the Mine Act.

The case also discussed interpretation of rules such as MSHA's guarding standards, where the Commission has held that the standard must consider whether there is a ìreasonable possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.î The accidental versus intentional conduct debate has raged for years over application of 56/57.14107 and 56/57.14112. Here, Judge Manning noted, ìHuman behavior can be erratic and unpredictable,î adding that just because no employee has ever been injured by an unguarded tail pulley at the cited quarries, this is not a defense because there is a history of such injuries at other operations.

EXPECT THE UNEXPECTED

Although examination of each citation debated is outside the scope of this column, there were a number of general issues addressed by the judge that are significant, and the case (more than 50 pages long) relates what inspectors are likely to look for when putting a mine under a complaint-based microscope.

So, when MSHA shows up for a complaint-based inspection, it is fair to assume that everything will be under scrutiny, novel standards will be cited, and imported experts may be used. Most likely, the inspection will be unlike anything your mine has ever experienced before!

AUTHOR INFORMATION

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.