MSHA Update

New issues have prompted noteworthy rulings by administrative law judges. While judge’s decisions are not binding precedent, they can influence other judges and are sometimes cited by the Federal Mine Safety and Health Review Commission.

Considering a civil penalty challenge by Mountain Edge Mining, Administrative Law Judge William B. Moran raised the penalty tenfold from $12,518 to $124,732. (Judges are not bound to follow MSHA’s proposed penalty assessments.) Accepting MSHA’s charges as issued, Judge Moran proceeded to treat ground and ventilation control violations much more seriously than MSHA in determining the final penalty.

In Wake Stone Corporation, Administrative Law Judge L. Zane Gill considered a contest to a citation for horns not working on non-operating mobile equipment. MSHA’s long time position has been that the only way to avoid a violation is to tag equipment out of service. The company’s position was that it had a right to perform its mandatory pre-operation inspection of parked equipment prior to examination by MSHA. The horn defects could not be known or remedied, the company argued, until the operator had a chance to examine the equipment as required before placing it in service. Judge Gill was sympathetic to the argument, including the argument that the operator had a right to correct defects found in its own inspection without citation from MSHA. Judge Gill considered MSHA’s interpretation to be in conflict with the purposes of the law because it would deprive operators of an important motivation to carefully examine and correct equipment defects.

In Lakeview Rocks Products, Administrative Law Judge Kenneth R. Andrews rejected a citation for lack of guardrails on truck scales. He concluded that MSHA had not proven a risk of vehicle overturning on scales 30 to 56 inches above ground. The judge ruled that eight-inch rub rails were shown to be sufficient, notwithstanding MSHA’s Program Policy Letter that states elevated truck scales require guardrails that reach mid-axel height.