Beginning in February 2010, the Mine Safety and Health Administration rolled out its Rules to Live By Program. This program recognized certain standards both in coal and metal/nonmetal that have been identified by MSHA as to being leading causes of mining fatalities throughout the country.

Each month Dinsmore MSHA attorneys will discuss one coal and one metal/nonmetal standard and the relevant caselaw that has addressed the standard.

Rules to Live By I was based on MSHA’s analysis of 24 standards – 11 in coal mining and 13 in metal and nonmetal mining – frequently cited in fatal accident investigations. These violations fell into 9 different accident categories:

Falls from Elevation Falls of Roof and Rib Operating Mobile Equipment (Surface) Operating Mobile Equipment (Underground) Maintenance Lock and Tag Out Struck by Mobile Equipment (Surface) Struck by Mobile Equipment (Underground) Blocking Against Motion

30 C.F.R. § 56.14205 – Machinery, Equipment, and Tools

Machinery, equipment, and tools shall not be used beyond the design capacity intended by the manufacturer where such use may create a hazard to persons.

Cemex Inc., 35 FMSHRC 1355 (May 2013) (ALJ Miller)

MSHA issued a Section 104(a) S&S citation for an alleged violation of 30 C.F.R. Section 56.14205 alleging that an electrician was injured working on a 4160 volt piece of equipment with a multi-meter that was only rated at 1000 volts. MSHA initially issued the citation with moderate negligence but modified it to high and assessed a civil penalty of $38,000.00.

The operator did not dispute the fact of the violation – that the multi-meter tool was used beyond its design capacity. ALJ Miller also found that the violation was S&S because the violation created a discrete safety hazard which resulted in an accident and injury. ALJ Miller, however, did not agree with MSHA’s finding of high negligence. Instead, the facts established that the electrician, at the time of the accident, was working at the motor control center with a top cabinet that said 480 volts and a bottom cabinet that said 4160 volts. The electrician further testified that he did not understand he was working on the cabinet with 4160 volts. While ALJ Miller found that the electrician was not properly trained the facts established mitigating circumstances because he misunderstood which cabinet he was working on. As a result, ALJ Miller lowered the negligence to moderate and reduced the penalty to $20,000.00.

30 C.F.R. § 77.404(c) – Machinery and Equipment; Operation and Maintenance

(c) Repairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion, except where machinery motion is necessary to make adjustments.

Kentucky Fuel Corporation, 38 FMSHRC 2905 (Dec. 2016) (ALJ Steele)

MSHA issued a Section 104(a) S&S citation alleging high negligence and a violation of 30 C.F.R. Section 77.404(c) because the operator failed to block a grease truck from motion and because suitable wheel chocks were not available at the mine site which ultimately led to an accident when the grease truck suddenly started with a miner underneath the truck. The truck rolled over the miner resulting in broken ribs and a punctured lung.

ALJ Steele found that the Secretary established an S&S violation of 30 C.F.R. Section 77.404(c). ALJ Steele also discussed in depth that the violation was the result of the operator’s high negligence. Importantly, ALJ Steele noted that Commission judges are not required to apply the level of negligence definitions in Part 100 and may evaluate negligence from the starting point of a traditional negligence analysis meaning that the operator is negligent if it fails to meet the requisite standard of care – a standard of care that is high under the Mine Act. Moreover, Commission judges are not limited to an evaluation of potential mitigating circumstances but should also consider the totality of the circumstances holistically.

ALJ Steele also noted that an operator has the ability to defend enforcement actions by using the so-called Nacco defense – meaning that the conduct of a rank-and-file miner cannot be imputed to the operator for penalty purposes within the context of negligence. Nevertheless, to determine if an operator has met its duty of care (mentioned above), the Commission is to consider what a reasonably prudent person, familiar with the mining industry, the relevant facts, and the protective purposes of the standard (here, 30 C.F.R. Section 77.404(c)), would have done.

Here, ALJ Steele found that the operator’s lack of supervision, training, and provisions of materials led to a proper finding of high negligence. Significantly, while a supervisor was on-site he was not near the grease truck at the time of the accident. Moreover, the miner’s decision to block the 48,000 pound truck with a single crib (because of the absence of suitable chocking device) further supported the finding of high negligence.