Providing effective task training to mobile equipment operators always is a daunting duty for mine operators because of the need to supervise new operators, while ensuring their safety and preventing damage to very expensive equipment. One aggregate producer learned the hard way how not to conduct task training when an MSHA citation was upheld after a hearing before Administrative Law Judge Manning. In Secretary of Labor v. Rinker Materials Western, Inc. and William E. Reffalt (ALJ, Jan. 29, 2008), the company's Wyoming limestone quarry received a Section 104(d)(1) “unwarrantable failure” citation for an alleged violation of § 56.9200(d) and the company superintendent, Mr. Reffalt, was personally fined under Section 110(c) of the Mine Act; penalties proposed by MSHA were $2,000 against Rinker and $750 against the agent.

CAUGHT CATCHING A RIDE

The cited standard provides: “Persons shall not be transported outside: (1) cabs, (2) equipment operators' stations and (3) beds of mobile equipment, except when necessary for (1) maintenance, (2) testing or (3) training purposes, and provisions are made for secure travel.” The complaint-based inspection discovered that Mr. Reffalt told an employee to ride in a front-end loader with another employee in order to task train the new worker. The design of the equipment did not provide a second seat for the trainer nor a seat belt, so a folding chair was put in the loader. Upon further investigation, the inspector, Thomas Markve, found that this was indeed the case for training on 980(H) loaders, and when training was provided for 980(C) loaders, the second person sat on the arm rest, also without any restraint system.

Inspector Markve determined that the gravity was “reasonably likely to be fatal” and he based his “unwarrantable failure” findings on Mr. Reffalt's statement: “Well, we did it, but I don't know how else I'm going to do it. I am not going to turn over a $500,000 loader to an 18-year-old kid.” Ironically, Mr. Reffalt was not the trainer — that glory belonged to the miner's representative at the mine. The inspector also testified that the training allegedly took place during the production cycle and there was no separate area designated for training. However, there were hazards present near the stockpile where the training occurred.

Markve also stated that a previous inspector had told him that, a year earlier, he had told Mr. Reffalt that it was prohibited to have a second person in the loader, further aggravating the negligence. That inspector also testified at trial against Rinker and Reffalt. Another MSHA Specialist, Ronald Goldade, testified that “secure travel” within the meaning of the standard consists of the manufactured seat and seat belt. Goldade said he had found nobody who had two people in a cab during haulage task training.

MSHA AT THE WHEEL

In preparing its case, MSHA checked with other mine operators in the area about how they provided loader task training. One told MSHA that the trainee sits at the controls while the trainer goes over what the controls are for. Once the trainee is comfortable with this, the trainer leaves the cab and uses radio contact to instruct the trainee on various tasks. That operator also said training is done in a remote area, and not during production. Another witness for MSHA was the union president at another mining company, FMC Corp. He testified as to FMC's training process, which includes review of the operating manual, discussion of safety aspects and dangers, followed by letting the trainee operate equipment in a place with plenty of practice room and without the potential to endanger anyone or to damage property.

RINKER'S DEFENSE

In Rinker's argument, Mr. Reffalt described the process used and said that the training was done in a big, flat area with 7-foot berms. He said that the folding chair fit “neatly” between the door and the armrest. He also disputed having a previous discussion with the other inspector about task training on the 980 trucks; rather, the discussion had to do with a driller who was hanging out of the loader's cab on another occasion that was unrelated to training.

Reffalt added that he believed the training was conducted in the “safest way possible” because the process requires the trainer to see the trainee's face and to be able to put the engine in neutral and stop the equipment if needed. Reffalt added that he believed the “cab” and the “operator's station” were the same thing and that the quarry had completed training in this way for 30-plus years without a previous citation. The miner's rep also testified for the company, and stated that he and the trainee took turns sitting on an armrest, and expressed a preference for this method over the use of a radio for training.

The company used an expert witness, former MSHA Metal/Nonmetal Administrator Vernon Gomez. He testified that the operator is the person required to wear a seat belt and that there is nothing in the regulation requiring anyone else to wear a seat belt. He maintained that he never cited anyone for a violation of the standard for this type of practice and, if he knew operators were being cited [while he was an MSHA official], he would have stopped the practice.

JUDGE MANNING INTERPRETS

In rendering his decision, Judge Manning examined the language of the cited standard to determine if it was clear on its face: it was not. He noted that an “equipment operator's station” is not defined by MSHA, and there was nothing to lead one to conclude that “cabs” and these stations were synonymous. He agreed that no MSHA standard specifically requires all passengers in mobile equipment to be seated or secured with a seat belt. He also differed with the secretary's approach, noting that under her argument, no one could ride in a cab unless he or she were there for maintenance, testing or training, even if he or she were wearing a seat belt.

He deemed the standard “ambiguous, confusing and very poorly drafted.” He noted, however, that it is customary to defer to the secretary's reasonable interpretation of her standards, and that when the text is read in conjunction with its preamble, it is clear that a mine operator may use mobile equipment to transport miners as long as they are “inside the cab and are secured.” Typically, that involves being seated in a seat equipped with a seat belt.

The judge found that riding in a folding chair or on an armrest creates a hazard and that a person sitting in that manner clearly is not “sitting in the equipment operators' station,” although that person is inside the “cab” — making these terms distinct from each other. He rejected Rinker's argument that the agency did not provide fair notice to the mining community of its interpretation, noting that Rinker's method of task training was not typical in the industry. The fair notice test is “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.”

PENALTY REDUCED

A violation was established, and upheld as “S&S” by the judge. However, he did reject MSHA's arguments that this involved “unwarrantable failure” and reduced the negligence from high to low because the language of the standard was not clear, and Rinker sincerely believed it was safer to have an experienced miner in the cab during training. He added that, for more than 30 years, MSHA had never called Rinker's training methods into question. With respect to Mr. Reffalt, the judge found that the inspector “was reading way too much” into the supervisor's statements and the decision not to conference the citation. The judge pointed out that the company did not dispute the allegations concerning how it trained, but only whether these violated the cited standard. The penalty against the company was reduced to $500 and the Section 110(c) action against Mr. Reffalt was dismissed.

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 safetylawyer@aol.com