A judge has upheld four MSHA citations against an operator involving hydraulic oil leaks on mobile equipment, but dismissed four identical violations involving accumulations of combustible motor oil materials because, under the circumstances, their locations did not present a fire hazard.

Justice Energy Co., Inc. was cited for eight alleged violations of MSHA’s combustible materials standard (30 C.F.R. § 77.1104) during an inspection at the operator’s Red Fox Surface Mine in West Virginia in September 2011. The standard states that combustible materials may not be allowed to accumulate where they can create a fire hazard. All eight citations were written as “moderate negligence” and “significant and substantial” (S&S) which means the condition is reasonably likely to lead to serious injury. Proposed fines totaled $49,976.

Administrative Law Judge Jerold Feldman of the Federal Mine Safety and Health Review Commission vacated the four motor oil citations, holding that MSHA could not make its case that the motor oil leaks occurred in locations near engine surfaces hot enough to raise the temperature of the oil to its 399°F flashpoint. He said MSHA’s arguments were based on “supposition,” not empirical evidence.

“Thus, in the absence of evidence of potential exposure to relevant flashpoint temperature, the Secretary’s general assertion that motor oil deposits on hot engine components would be a fire hazard rendering use of such mobile equipment inherently dangerous is illogical,” the judge said in a January 20 decision.

Judge Feldman took a different view of the potential fire risk from hydraulic oil leaks. “However, unlike motor oil, normal hydraulic oil usage relies on properly functioning pressurized lines, equipped with fittings and gaskets that can withstand such pressurization,” Feldman said. “When [these] fail, it is reasonably likely that the released pressurized hydraulic oil may be atomized, and sprayed or misted onto hot engine surfaces, thus posing a serious risk of ignition and resultant fire.”

The judge upheld the four hydraulic oil citations, but rejected MSHA’s S&S determinations for three of them after finding the enforcement agency had failed to show either proximity of the leak to a heat source or atomization at the source of the leak. Feldman said the last of these citations properly was S&S because the leak was found near a hot turbocharger and exhaust of a highwall drill. Combined fines were lowered to $14,003, down from the proposed $21,739.

Of the three other alleged violations involving maintenance defects on mobile equipment in this case, Feldman vacated one and upheld two, adding $16,506 to the operator’s overall fine. A settlement was reached for the seven remaining citations in the docket.