ALJ Vacate Drilling Citations, Citing an Unreasonable Interpretation

By Ellen Smith

MSHA’s interpretation of a drilling standard is erroneous, not worthy of deference, and would lead to extraordinarily dangerous results, according to a recent ruling by Review Commission Judge Pricilla Rae. The case involved MSHA’s interpretation of §56.7012, which requires that drills be “attended” at all times. The dispute centered around the meaning of “attended.”

MSHA cited Drilling & Blasting Services’ work at Lucky Stone’s Pittsboro Plant in North Carolina in March 2012. The contractor works about 50 sites in North and South Carolina and Georgia, using an Ingersoll- Rand DM 30 to drill blast holes in stone quarries.

On the evening of March 14, the MSHA inspector saw the drill operator at a distance of approximately 18 ft. from the drill walking toward it. The next morning as he approached the drill, he saw the same operator inside the cab of a pickup truck located approximately 20 ft. from the drill. In both instances the drill was in operation within the blasting area.

It was the inspector’s opinion that the definition of the standard, under §56.2, requires the operator to remain within arm’s reach of the controls at all times to prevent “unauthorized injury or accidents.”

He further referred to §56.7052, “Drilling Positions,” which states that “persons shall not drill from positions which hinder their access to the control levers” in support of his position. He stated that in order to be in compliance with this standard, the operator must shut down the drill if he needs to exit the cab. The inspector also testified that it was important for the drill operator to remain in the cab because when there is a change in strata, “the steel or bit could get hung [up] in the hole causing the steel to fragment under pressure … something gives, it can explode.”

The operator argued that the word “attendance” as used in the standard, means that the drill operator stay within the blasting zone.

Staying in the cab would be one of the more dangerous things an operator could do, the company said. The area in which they were drilling was soft dirt, which poses a risk of destabilizing the supporting jacks from the vibration caused by drilling. The jacks must remain level to stabilize the drill.

Monitoring ground conditions throughout the drilling process is an essential safety measure undertaken by the drill operator to ensure the jacks do not sink or become otherwise unstable. The composition of the ground, the vibration of the drill and even the presence of rain can affect the ground conditions rather rapidly.

If the ground were to give out, the drill and the operator, if he is inside the cab, could go over the high wall with fatal results. In addition to constantly monitoring ground conditions for changes, the drill operator must repeatedly check the engine and compressor for leaks and other problems, which cannot be done while located inside the cab.

Company policy, and long-standing practices, was that the drill operator remain within the blast zone, and this also assures that an unauthorized person does not enter the area. In addition, Policy Instruction Bulletin 31 instructs drillers to exit their drill in order to monitor ground conditions while the drill is operating. Under “Best Practices,” drillers are instructed to constantly monitor ground conditions during all phases of drilling, which must be done outside of the cab.

In addition, the company noted that it had a similar citation vacated by a field office supervisor a year before this citation, therefore it believed it was in compliance.

Judge Rae noted that while MSHA’s interpretation is given controlling deference, the term “attended” in §56.7012 is ambiguous on its face, and there is no guidance from legislative history nor are there controlling Program Information Bulletins or other instructional materials issued by MSHA. Section 56.2 is the only definition of the term “attended,” which is stated as in the “presence of an individual” or under “continuous monitoring.”

Rae said if she accepted the Secretary’s interpretation of requiring the drill operator to remain in the cab at the controls at all times, “it would be the most dangerous thing in the world to do.”

In vacating the citations, Rae said, “The Secretary has presented no evidence that the driller was not attending to his drill on either occasion cited here within the meaning of the standard as I have found.”

DRILLING & BLASTING SERVICES, 5/31/13, civil penalty proceeding, Docket No. SE 2012-510-M; 20 MSHN D

Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, She has been covering mining issues since 1987 and has won 31 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211, or at [email protected].


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