A judge’s February 18 decision vacating a citation for a safety defect on a piece of mobile equipment has further clouded enforcement of the Mine Safety and Health Administration’s safety defects standard (30 C.F.R. § 56.14100).

Administrative Law Judge Priscilla Rae vacated the citation and accompanying $224 fine against Martin Marietta Materials after an inspector issued a ticket under 30 C.F.R.§ 56.14100(b), which requires timely correction of defects, when he found defective headlights on a skid steer loader parked in an equipment shop at the company’s Greenwood Quarry in Missouri.

In similar cases, MSHA has argued that defects affecting safety are per se violations under the strict liability mandate of the Mine Safety and Health Act. Therefore, unless a defect has been identified and either tagged out or parked in a designated area for repair, MSHA has held that enforcement action is appropriate. However, in this case, the agency seems to have hesitated. It qualified its argument by saying the operator should have known about the faulty switch or taken the equipment out of service “at least after a pre-shift examination.”

MSHA argued in the alternative that if the ticket could not be sustained under the 30 C.F.R. § 56.14100(b) standard, then upholding it under 30 C.F.R. § 56.14100(c) would be appropriate. That section requires removal of the equipment from service when the defect creates a hazard from its continued operation. It provides, “When defects make continued operation hazardous to persons, the defective items including self-propelled mobile equipment shall be taken out of service and placed in a designated area posted for that purpose, or a tag or other effective method of marking the defective items shall be used to prohibit further use until the defects are corrected.”

ALJ Rae dismissed the agency’s arguments. She said MSHA presented no evidence the operator knew or should have known the defect existed. The headlights had been working the day before, but, on the day of the inspection, the loader had not been put into service, nor had a pre- operational examination been conducted. Likewise, no evidence was offered that the operator would not have conducted the mandated examination and repaired the problem before allowing the loader to be operated.

Judges have come down on both sides of the question on the extent to which strict liability should be imposed in cases involving the 30 C.F.R. § 56.14100 standard. A definitive decision could be coming from the Federal Mine Safety and Health Review Commission. In Wake Stone Corp., a case argued for the operator by Jackson Lewis attorneys, an inspector refused to acknowledge the operator’s lawful duty to correct defects free of enforcement action following a pre-operational inspection of mobile equipment, which was found to have inoperable service horns. A decision is expected soon.