Beginning in February 2010, the Mine Safety and Health Administration rolled out its Rules to Live By Program. This program recognized certain standards in coal and metal/nonmetal that have been identified by MSHA as 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 nine 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

Metal/Nonmetal Standard

30 C.F.R. § 56.16002(c) – Bins, Hoppers, Silos, Tanks, and Surge Piles

(c) Where persons are required to enter any facility listed in this standard for maintenance or inspection purposes, ladders, platforms, or staging shall be provided. No person shall enter the facility until the supply and discharge of materials have ceased and the supply and discharge equipment is locked out. Persons entering the facility shall wear a safety belt or harness equipped with a lifeline suitably fastened. A second person, similarly equipped, shall be stationed near where the lifeline is fastened and shall constantly adjust it or keep it tight as needed, with minimum slack.

Eureka Stone Quarry, Inc., 38 FMSHRC 2254 (Aug. 2016) (ALJ Lewis)

Following an accident in which a miner was struck by materials, MSHA issued a Section 104(d)(1) unwarrantable failure citation because the operator failed to stop the flow of materials into a crusher prior to a miner entering the unit for cleaning. The inspector cited the alleged violation as S&S and the result of the operator’s high negligence.

ALJ Lewis found that the Secretary carried its burden of proof establishing a violation despite the arguments made by the operator that the crusher had been locked and tagged out of service. ALJ Lewis found there was an ongoing supply and discharge of materials into the crusher which violated the standard that requires the discharge of materials to cease. ALJ Lewis also upheld the S&S designation and went as far as stating even if there was not an accident the surrounding circumstances “almost guaranteed that an injury would inevitably occur” based on the large volume of materials allowed to be discharged despite the crusher being locked and tagged out. Finally, ALJ Lewis upheld the high negligence and unwarrantable failure designations finding there were no mitigating circumstances to reduce the negligence and that the operator’s failure to comply with 30 C.F.R. Section 56.16002(c) was aggravated conduct.

Coal Standard

30 C.F.R. § 77.1710(g) – Protective Clothing; Requirements

Each employee working in a surface coal mine or in the surface work areas of an underground coal mine shall be required to wear protective clothing and devices as indicated below:

(g) Safety belts and lines where there is danger of falling; a second person shall tend the lifeline when bins, tanks, or other dangerous areas are entered.

Lehigh Anthracite Coal, LLC, 38 FMSHRC 2782 (Nov. 2016) (ALJ Gill)

Following a hazard complaint, MSHA issued a Section 104(a) S&S citation with moderate negligence alleging a miner descended into a pit without any means of fall protection. The pit was 55 feet deep from the highwall to the pit floor.

The operator argued the standard contemplated the “danger of falling” from height while the hazard witnessed here was the miner losing his footing on the sloped, uneven terrain, and fall protection would not have mitigated that risk. ALJ Gill, however, found fall protection is also required on a “sufficiently steep slope descending to sufficient depths.”

ALJ Gill also upheld the S&S finding because “without fall protection [the miner] was reasonably likely to fall down a steep slope containing unconsolidated material.” Moreover, because of the height of the pit and the steepness of the slope a reasonably serious injury such as a sprain or broken bones was reasonably likely to result. Finally, ALJ Gill upheld the moderate negligence finding based on the one mitigating circumstance found by the inspector – the operator provided the miner with a rope to assist with his descent into the pit.