Here Are Some Suggestions Aimed At Reducing Your Liability In These Two Situations.
By Brian Hendrix
An “evergreen” issue is one that comes up repeatedly and remains relevant over time. Here’s a great example: MSHA inspects a piece of mobile equipment that’s parked on the ready line, but not in service. It has not been examined by the operator. Let’s say it’s a haul truck. The inspector asks you to find a driver to operate the truck for him.
During the examination, the inspector and the driver discovers that the back-up alarm isn’t working. The pre-operation examination form for the last shift on which it was operated doesn’t say anything about the back-up alarm, and the driver who performed that examination and drove the truck says that he thinks it was working when he parked it.
On these facts, an MSHA inspector will usually cite the operator for the back-up alarm. Here’s why, along with a few suggestions aimed at reducing your liability in these kinds of situations.
If MSHA believes that a piece of equipment or machinery is available for use, it will cite any defect or other violation it finds when it inspects that equipment or machinery. Additionally, MSHA may take the position that a piece of equipment that is tagged out, but not otherwise disabled, is available for use.
The 2008 version of MSHA’s Citation and Order Writing Handbook provided an example to illustrate this point:
Scenario: A loader was observed parked and not operating at the time of inspection. It did not have the required seat belts installed. The inspector determined that the machine was used as a spare and was not out of service. The inspector did not issue a citation for the lack of seat belts. The rationale used by the inspector was that the loader was not operating at the time he or she observed the violation.
This evaluation is not correct – a violation was observed on mobile equipment that could be started and used any time subjecting miners to possible injury or death. A citation shall be issued for all violations found on equipment or machinery not taken out of service and tagged prior to being inspected by MSHA.
MSHA deleted the above example from the current (2020) version of its Citation and Order Writing Handbook. The current version doesn’t provide any real guidance to inspectors on this issue. Nevertheless, you should assume that MSHA will inspect equipment or machinery if it could be used or placed into service, regardless of whether the equipment or machinery is in fact in use and regardless of how likely it is to be used.
The Commission agrees with MSHA on this point. In Secretary of Labor v. Wake Stone Corp., the Commission reversed a ALJ’s decision to vacate citations issued to the operator for a failure to maintain the service horns on two pieces of equipment.
The operator argued that it didn’t violate the standard “because the vehicles had not been in use when the defects were discovered, thus entitling it to perform a pre-operational examination prior to the MSHA inspection.” However, the Commission rejected that argument, holding that the purpose of the standard was to “shield miners from the hazards posed by operating defective equipment . . . Absent specific limiting language, the Commission has consistently determined that standards requiring maintenance in functional condition are enforceable when the cited equipment is not in actual use, unless it has been removed from service.”
As such, “because the defective vehicles were located in a normal work area, were capable of being used, and had not been locked and tagged out,” the Commission held that the vehicles “were in ‘use’ at the time of inspection.”
What does it take to remove equipment or machinery from service? According to MSHA’s 2008 Handbook, in order to remove equipment or machinery from service, a mine operator must “permanently incapacitate” or “render [it] inoperable.” Here’s the example MSHA from the 2008 version of the Handbook:
Scenario: A loader is cited for not having an audible back-up alarm installed. The mine operator (or contractor) takes the tires off the loader, places it on blocks, removes the battery, and welds the doors closed. Any of these actions could qualify the equipment as being “removed from service” and justify termination of any outstanding citation(s) or order(s).”
From a safety and health standpoint (and any other standpoint), it makes zero sense to remove a loader’s tires, pull its battery or weld its doors shut solely to take it out of service for a bad back up alarm.
MSHA deleted this example from the Handbook. The current version just states that “‘removed from service’ does not mean that the mine operator stopped using and parked a piece of equipment (e.g., front-end loader, truck) or a mining unit (e.g., portable crusher, screening unit) when it could or can be restarted and easily placed back into service.”
If a loader with a bad back-up alarm is parked and clearly tagged out, I doubt a good inspector would consider the loader to be available for use.
With all that as background, what are your options when an MSHA inspector directs machinery or equipment to be placed into operation? Here are the three most common questions mine operators ask us when in these situations:
Does an MSHA inspector have the authority to inspect equipment or machinery that is not in service? Yes. MSHA inspectors have broad authority under the Federal Mine Safety and Health Act to inspect equipment or machinery on mine property. MSHA’s inspection authority – its right of entry – isn’t unlimited, but it’s incredibly broad. The fact that the machinery or equipment in question is not in service at the time of the inspection does not change or limit MSHA’s authority to inspect it.
Does an MSHA inspector have the authority to require a mine operator to operate a piece of equipment or machinery? No. MSHA inspectors have no authority to direct routine mining operations. MSHA inspectors are authorized to withdraw miners from areas of a mine where the inspector believes there to be an imminent danger. Put differently, an MSHA inspector is authorized to shut a mine or an area of a mine down, not to run a mine. What this means is an MSHA inspector has no authority to order you to start a haul truck, to energize a conveyor or to otherwise require you to operate any equipment or machinery that is not already in service at the time of the inspection.
Should a mine operator operate machinery or equipment if MSHA asks the operator to do so? It depends. Demonstrations of any sort are ill advised, and operating equipment or machinery solely to satisfy an MSHA inspector’s request qualifies as a demonstration. Mine operators often decide that it is better to run a piece of equipment or machinery than it is to deny an inspector’s request. For example, if the equipment is sitting on the ready line and will likely be operated in the near future, most operators will go ahead and run it for the inspector.
If you do choose to place equipment or machinery in operation at MSHA’s request, conduct a thorough pre-shift or pre-operational inspection of the equipment or machinery and carefully note any defects that may affect safety in any way and correct those defects before you place the equipment or machinery into operation.
MSHA’s approach to these issues may not always be fair or reasonable. Thus, citations issued for alleged violations found during an inspection of out-of-service equipment (or after equipment is started up in response to an inspector’s request) should be flagged and, where appropriate, challenged.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at