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)
Lock and Tag Out
Struck by Mobile Equipment (Surface)
Struck by Mobile Equipment (Underground)
Blocking Against Motion

Metal/Nonmetal Standard

30 C.F.R. § 56.9101 – Operating Speeds and Control of Equipment

Operators of self-propelled mobile equipment shall maintain control of the equipment while it is in motion. Operating speeds shall be consistent with conditions of roadways, tracks, grades, clearance, visibility, and traffic, and the type of equipment used.

In Daanen & Janssen Inc., 20 FMSHRC 189 (Mar. 1998), the Commission upheld the ALJ’s finding that the operator violated 30 C.F.R. Section 56.9101 following a fatal accident. The evidence at the hearing established that the victim lost control of the moving loader by “veer[ing] to the left side of the access road, hit the berm twice, and soon thereafter, drove through the berm, plummeting 40 feet.”

ALJ Hodgdon found that a mine operator was not negligent in connection with a miner’s failure to wear a seat belt and failure to maintain control of his dump truck in Jobe Concrete Products, Inc., 21 FMSHRC 1143 (Oct. 1999) (ALJ Hodgdon). While the operator accepted the violation of the underlying standards it challenged MSHA’s finding of moderate negligence in each. ALJ Hodgdon agreed with the operator’s argument that the negligence of the miner cannot be directly imputed to the operator – unless the operator’s supervision and training of the miner was deficient. Here, the operator had taken reasonable steps to prevent the miner’s violative conduct – including having a seat belt policy.

Finally, in Empire Iron Mining Partnership, 19 FMSHRC 1912 (Dec. 1997) (ALJ Hodgdon), ALJ Hodgdon also vacated an alleged violation of 30 C.F.R. Section 56.9101 following an injury to a miner while he was driving home from work. The miner’s personal vehicle skidded on an icy mine road leading to his injuries. ALJ Hodgdon noted that the plain language of the standard did not apply to the operation of personal vehicles used by miners to commute to and from work. Importantly, a “reasonably prudent person” would not have recognized that the standard applied to the operation of personal cars being driven home from work.”

Coal Standard

30 C.F.R. § 75.202 – Protection from Falls of Roof, Face and Ribs

(a) The roof, face and ribs of areas where persons work or travel shall be supported or otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.
(b) No person shall work or travel under unsupported roof unless in accordance with this subpart.

The Commission affirmed an ALJ’s finding that the operator violated 30 C.F.R. Section 75.202(a) based on the inspector’s first hand observations. In Harlan Cumberland Coal Co., 20 FMSHRC 1275 (Dec. 1998), evidence that the inspector believed that a roof fall was imminent was enough to sustain an S&S designation.

An alleged Section 104(d)(2) unwarrantable failure S&S order for failing to support or otherwise control the roof in violation of 30 C.F.R. Section 75.202(a) was reduced to a Section 104(a) citation in American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ Zielinski). ALJ Zielinski determined that the inspector had been in the travelway less than 24 hours earlier without citing any hazardous conditions. Moreover, the company walkaround representative took notes and stated that the conditions found by the inspector – including a “broken up roof and loose roof bolts present” – was normal but not serious. The alleged violations were not flagrant because the inspector traveled the area at least two times the previous day and did not find any of the conditions that he alleged were obvious. In addition, the ALJ reduced the penalty from $158,900 to $5,000.

In Martin County Coal Corp., 36 FMSHRC 1054 (Apr. 2014) (ALJ Feldman) MSHA issued three Section 104(d) unwarrantable failure S&S enforcement actions for violations of 30 C.F.R. Section 75.202(a). Allegedly, MSHA found rib cracks, improperly spaced roof bolts, and a wide entry. ALJ Feldman vacated the unwarrantable failure findings because the inspectors could not articulate how any of the conditions posed a hazard. Finally, ALJ Feldman found that MSHA inspected the mine two weeks prior and there was no hazardous conditions or violations observed as justification for vacating the unwarrantable failure findings.

ALJ Simonton reduced a penalty from $14,700 to $1,500 in Big Ridge Inc., 36 FMSHRC 999 (Apr. 2014) (ALJ Simonton) for an alleged violation of 30 C.F.R. Section 75.202(a) because one damaged roof bolt was not sufficient evidence to show that the operator was highly negligent nor that the operator was aware of damage to the specific bolt.