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. § 56.15005 – Safety Belts and Lines
Safety belts and lines shall be worn when persons work where there is danger of falling; a second person shall tend the lifeline when bins, tanks, or other dangerous areas are entered.
Sims Crane, 39 FMSHRC 116 (Jan. 2017) (ALJ McCarthy)
While arriving at a mine site to begin an inspection the inspector observed a truck driver loading a crane on a lowboy trailer to remove the crane from the mine site. As the truck driver left the cab of the crane he walked across the front left fender of the crane without using any fall protection. The inspector alleged that the violation was S&S and the result of the operator’s moderate negligence.
ALJ McCarthy noted that, for purposes of an S&S determination, the second step of the Mathies analysis focuses on the extent to which the violation contributes to a particular hazard. As a result, the second step requires (1) an identification of the hazard created by the violation of the safety standard and (2) a determination of whether, based on the particular facts surrounding the violation, there exists a reasonable likelihood of occurrence of the hazards which the mandatory safety standard is directed.
Here, ALJ McCarthy determined that the failure of the truck driver to use fall protection when he crossed the front fender presented a fall hazard. Next, ALJ McCarthy had to determine if the failure to use fall protection was reasonably likely to lead to a fall. To determine this, he noted that “the question of whether a violation is S&S must be resolved on the basis of the conditions as they existed at the time of the violation and as they might have existed under continued normal mining operations.” Based on the testimony, ALJ McCarthy did not believe a fall was likely. Importantly, based on the length of the fender – approximately six to seven feet – the truck driver only needed to take two or three steps without three points of contact (and the fender surface was covered with anti-skid material). Therefore, the violation was not S&S.
30 C.F.R. § 77.1607(n) – Loading and Haulage Equipment; Operation
(n) Mobile equipment shall not be left unattended unless the brakes are set. The wheels shall be turned into a bank or berm, or shall be blocked, when such equipment is parked on a grade.
Texas Utilities Generating Co, 2 MSHC 1028, 1980 FMSHRC Lexis 796 (Aug. 1980) (ALJ Stewart)
MSHA issued a violation alleging a violation of 30 C.F.R. Section 77.1607(n) when a boom truck was parked on a 10% grade unattended without the wheels turned to a bank or blocked. Prior to the issuance of the enforcement action, the MSHA inspector flagged the operator of the boom truck in order to examine the equipment. Because the MSHA inspector ordered the operator out of the truck the equipment operator parked the truck facing in a downhill direction. Later, the equipment operator returned to the vehicle and parked the truck across the downslope for the inspector to continue his inspection. The inspector, however, testified that he never asked the equipment operator to exit the cab during his inspection. Instead, the inspector testified that after he finished his inspection the equipment operator then got out of the cab and set the brakes but left the truck unattended and failed to turn the wheels into the bank.
Based on the conflicting testimony the ALJ found that the Secretary established a violation but found that the evidence did not establish any negligence on the part of the operator. Importantly, the inspector believed that the event was spontaneous and that the equipment operator did set the parking brake before leaving the vehicle. Finally, the Secretary did not produce any evidence that the training given to the operator’s miners was deficient.