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

Metal/Nonmetal Standard

30 C.F.R. § 56.14105 – Procedures During Repairs or Maintenance

Repairs or maintenance of machinery or equipment shall be performed only after the power is off, and the machinery or equipment blocked against hazardous motion. Machinery or equipment motion or activation is permitted to the extent that adjustments or testing cannot be performed without motion or activation, provided that persons are effectively protected from hazardous motion.

CR Meyer & Sons Company, Inc., 37 FMSHRC 2479 (Oct. 2015) (ALJ Manning)

MSHA issued a Section 104(d)(1) citation alleging that two miners failed to lock out and tag out equipment before reinstalling a guard that had been displaced. MSHA further alleged that the condition resulted from the operator’s unwarrantable failure because a foreman was aware of the condition in violation of the operator’s written policy. The inspector determined that the violation was S&S and the result of the operator’s high negligence.

ALJ Manning determined that a violation had occurred and noted three requirements under the standard: (1) the standard only applies when repairs or maintenance of machinery or equipment are being conducted; (2) the operator must ensure that machinery or equipment is powered off; and (3) the operator must ensure that the machinery or equipment is blocked against hazardous motion. All three were present here.

ALJ Manning also found that the alleged violation was S&S because the failure to de-energize the equipment and block it against motion before the guard was replaced exposed miners to the threat of entanglement.

The high negligence finding was reduced to moderate. ALJ Manning first recognized that the operator’s foreman was involved in the alleged violation and thus his negligence should be imputed to the operator. However, ALJ Manning noted that the action of the foreman was based on his honest belief that he was not exposed to any hazards. Thus, the foreman’s actions – as a reasonably prudent person familiar with the mining industry – did not amount to high negligence. ALJ Manning also vacated the unwarrantable failure finding after considering the seven factors set forth by the Commission in Consolidation Coal Co., 22 FMSHRC 340 (Mar. 2000). While ALJ Manning acknowledged that the alleged condition was obvious, potentially involved a high degree of danger, and was known to the operator by way of its agent, the alleged violation was not extensive, did not exist for a significant amount of time, and the operator had taken steps toward preventing the cited conduct.

Hibbing Taconite Company, 35 FMSHRC 3531 (Dec. 2013) (ALJ Miller)

MSHA alleged that the operator had a miner working on the replacement of pulley guards while the conveyor was in operation. MSHA issued a Section 104(d)(1) S&S unwarrantable failure citation with high negligence.

Here, ALJ Miller found that the alleged violation was not S&S because the Secretary failed to prove the third element of the Mathies test – that is, a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury. Specifically, the Secretary did not produce any evidence on how any miner would come into contact with the moving machine parts and why an individual providing maintenance would fall over or through a handrail. Moreover, the operator produced evidence that the miner felt safe because he was outside the handrail and that a toeboard was present. Thus, the limited exposed justified vacating the S&S finding.

Similarly, ALJ Miller reduced the high negligence to moderate because of testimony from the operator’s miners. Specifically, the miners testified that the area was safe and they each had a good faith belief that there was no need to lock and tag out the conveyor prior to starting work.

Coal Standard

30 C.F.R. § 75.1403-10(i) – Criteria – Haulage; General

(i) Off-track haulage roadways should be maintained as free as practicable from bottom irregularities, debris, and wet or muddy conditions that affect the control of the equipment.

Amax Coal Company, 18 FMSHRC 764 (May 1996) (ALJ Melick)

MSHA issued a citation alleging that mud and water was present in a haulageway up to 24 inches in depth which affected the control of equipment. ALJ Melick first held that the underlying safeguard was validly issued. As far as the subsequent enforcement action, ALJ Melick found that the presence of 30 feet of water along the 15 foot wide entry in one location and 150 feet of water in a second location created a hazardous condition. Moreover, the inspector testified that a Gettman tractor was stuck in the mud. As a result of this evidence, ALJ Melick upheld the enforcement action as S&S.