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MSHA Rules to Live By - May 2017 Mine Safety Case Summaries

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.

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. § 56.14207 – Parking Procedures for Unattended Equipment

Mobile equipment shall not be left unattended unless the controls are placed in the park position and the parking brake, if provided, is set. When parked on a grade, the wheels or tracks of mobile equipment shall be either chocked or turned into a bank.

Blanchard Machinery, 38 FMSHRC 1786 (July 2016) (ALJ Paez)

MSHA alleged that the operator left mobile equipment unattended without setting the parking brake in violation of 30 C.F.R. Section 56.14207. The MSHA inspector found that the alleged violation resulted from the operator’s moderate negligence. While ALJ Paez found a violation of the cited standard he held that the operator’s negligence was none because the Secretary provided no evidence to establish that the operator’s equipment operator occupied a supervisory or managerial position or that the operator knew or should have known that the miner left the equipment without setting the parking brake. Moreover, ALJ Paez credited the operator’s testimony that it trained its employees to comply with the provisions of 30 C.F.R. Section 56.14207. Finally, ALJ Paez credited the operator’s testimony that the equipment was parked against a railroad tie which further mitigated its negligence.

American Colloid Company, 37 FMSHRC 2078 (Sept. 2015) (ALJ Gill)

MSHA issued two unwarrantable failure violations of 30 C.F.R. Section 56.14207. The first citation alleged that a piece of mobile equipment was found to be parked and unattended on a 4% grade without wheel chocks. The second order alleged that mobile equipment was found to be parked and unattended on a 3% grade without wheel chocks. Both enforcement actions alleged that injury was reasonably likely to be fatal, S&S, and the result of high negligence.

ALJ Gill vacated both enforcement actions after finding that chocking is not required when mobile equipment is parked on a de minimis or insignificant grade. While other Federal Mine Safety and Health Review Commission cases have found that an insignificant grade is only 1-2% ALJ Gill found that the Secretary did not produce enough evidence to establish that the 3% and 4% grade here would cause an unchocked vehicle from moving.

Coal Standard

30 C.F.R. § 77.1607(g) – Loading and Haulage Equipment; Operation

(g) Equipment operators shall be certain, by signal or other means, that all persons are clear before starting or moving equipment.

Austin Power, 9 FMSHRC 2015 (Dec. 1987)

Following a fatal accident MSHA issued an enforcement action alleging that the operator violated 30 C.F.R. Section 77.1607(g) because the crane operator was not certain that employees were in the clear before putting the crane in operation. At the hearing, the Administrative Law Judge found that 30 C.F.R. Section 77.1607(g) was violated because the crane operator had a duty to be certain that the employees were clear of the boom before the crane was ready to move the boom.

On appeal to the Federal Mine Safety and Health Review Commission, the operator argued that the crane operator received proper signals and made certain that all bystanders were clear before starting or moving the crane. In vacating the finding of a violation of 30 C.F.R. Section 77.1607(g), the Commission noted that it was the duty of the crane operator to make certain that all persons within the potential zone of danger were clear of reasonably foreseeable hazards before starting or moving the equipment. Here, the Commission found that the evidence produced at hearing established that three employees were in a protected area at the time the crane operator began to move the boom of the crane. Thus, there was no violation of the cited standard.

© 2017 Dinsmore & Shohl LLP. All rights reserved.

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About this Author

Robert Huston Beatty Jr, Dinsmore Shohl Law Natural Resources Litigation, lawyer
Partner

Robert Huston Beatty, Jr. is a member of the Natural Resources Practice Group. Bob represents mine operators before federal and state administrative agencies, federal courts, and state courts. He also provides pre-enforcement consulting services, including comprehensive training for mine managers and safety professionals.

Education

J.D., West Virginia University College of Law (1993)
B.A., West Virginia University (magna cum laude, honors scholar, 1990)

Bar Admissions

West Virginia

304-225-1412
Jason M. Nutzman, Dinsmore Law, Labor Lawyer, Mine Safety Attorney
Partner

Jason Nutzman is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Jason represents clients before the Federal Mine Safety and Health Review Commission in accident investigations, special investigations, and discrimination investigations conducted by the Department of Labor with respect to the
Mine Safety and Health Act.

In his practice, he works with human resource managers and in-house counsel providing employment advice and litigation support to employers. Jason also provides employment counseling to employers from the beginning of the employment relationship through termination and employment advice covering all types of discrimination and wrongful discharge, FMLA, ADA, ADEA and FLSA issues, and non-compete agreements. Jason is also experienced in representing clients regarding labor issues, including dealing with unions during a labor campaign and assisting management with a unionized workforce.

(304) 357-9938