In the aftermath of a fatal elevator accident in February 2014 at a cement plant in Kentucky, the Mine Safety and Health Administration (MSHA) has initiated an unannounced elevator enforcement review at cement operations around the country. According to MSHA management, the specific focus of these reviews, which are conducted in conjunction with regular inspection visits, is to determine the status of operator compliance with the personnel hoisting inspection and maintenance requirements at 30 C.F.R. §§ 56.19120 and 56.19121.
Section 56.19120 states that “a systematic procedure of inspection, testing, and maintenance of shafts and hoisting equipment shall be developed and followed” and that “if it is found or suspected that any part is not functioning properly, the hoist shall not be used until the malfunction has been located and repaired or adjustments have been made.” Section 56.19121 further requires that “at the time of completion” of the inspection required by § 56.19120, that inspector “shall certify, by signature and date, that [the inspection, testing and maintenance] have been done” and “a record of any part that is not functioning properly shall be made and dated.” While these hoisting standards are rarely utilized for elevators within building structures, MSHA’s position is that these requirements are fully applicable to such equipment, and lack of enforcement of this standard over the years does not reduce their effectiveness.
MSHA personnel are concentrating on the procedures and timing involved in operator-initiated elevator inspections and are requesting documentation of recent inspections and certifications. Under section 56.19121, such certifications are required to be maintained at the operation for one year. While most operators have general certifications from third-party elevator inspection/maintenance contractors that meet the minimum requirements under state law, problems have arisen when companies cannot comprehensively describe the procedures that are utilized by the contractors in inspection and testing. In such situations, MSHA asserts that it cannot adequately evaluate whether the inspection and testing is “systematic” and effectively address defective conditions in a timely and appropriate manner.
To deal with this perceived uncertainty, MSHA has requested that a number of operators obtain third-party inspection and testing records to provide the agency with additional information about the process. In some cases, MSHA has even requested that operators call third-party elevator contractors out to the plant to answer questions regarding the inspection and testing process. When confronted with company concerns about the authority to request such records and contractor access, MSHA personnel have, in some circumstances, even threatened the issuance of imminent danger orders in order to compel company response.
While the parameters of this debate are still being clarified by a number of companies, there are several points that should be remembered if this issue is brought to your door. First, pursuant to section 56.19121, operators are only required to provide a certification that contains the signature of the inspector and the date of the inspection. Second, section 56.19121 also requires that a record be maintained for one year of “any part that is not functioning properly.” Conceivably, although MSHA enforcement personnel disagree, no record is necessary if the part is replaced or repaired and is functioning properly. Unfortunately, there is no policy guidance or case law to solve the argument with respect to elevators. Finally, MSHA document requests and information demands should be reviewed very carefully to determine if they extend beyond Mine Act authority. While the industry’s track record over the last few years in restraining MSHA efforts to expand its information-gathering authority has been spotty, efforts by the agency—with respect to elevator compliance—to apply withdrawal order authority on operators to force action by, and access to, a third-party contractor, would seem to have gone over the line.