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Sims Crane

MSHA issued a single enforcement action alleging the contractor violated 30 C.F.R. Section 56.15005 when a miner exited the cab and descended from a crane on a lowboy trailer. The standard requires safety belts and lines to be worn when persons work where there is a danger of falling. Specifically, the MSHA inspector issued the enforcement action because he saw the contractor’s employee descend along a narrow fender that was not designed for use as a walkway and because the employee had not used fall protection such as handholds. The employee testified that he maintained three points of contact while exiting his cab but conceded that handholds were not available when he crossed the fender of his truck. The area the employee crossed was approximately seven feet above the ground, six feet in length, three feet wide, and covered in anti-skid material. At the hearing the contractor argued the miner’s method of egress was consistent with safe access standards issued by the International Organization for Standardization (“ISO”) and incorporated by MSHA. The ALJ found the contractor failed to provide certification of ISO compliance and found a violation.

The contractor then appealed to the Commission, arguing lack of ISO documentation is not a proper basis for a violation of the standard. The contractor also argued the ALJ improperly shifted the burden of proof by requiring the contractor to establish compliance rather than requiring the Secretary to establish a violation.

On appeal, the Commission noted ISO 2867 had been incorporated into MSHA’s guidance through PIB No. P.10-04. ISO 2867 requires all access systems to be slip resistant and encourages the use of three-point support when ascending, descending, or moving while more than one meter above ground. ISO 2867 also notes two-point support is acceptable for stairways, ramps, walkways, and platforms. The ALJ below agreed the method of egress was consistent with ISO 2867 but held operators (or contractors) to provide documentation certifying that equipment is ISO compliant and the contractor failed to provide such documentation for the crane at issue. As such, the ALJ found a violation of the cited standard.

Ultimately, the Commission (in a 5-0 decision) found the ALJ improperly shifted the burden of proof by requiring the contractor to prove the method of egress was compliant – thus establishing a non-violation – rather than requiring the Secretary to meet his burden of proving it was unsafe – and  thus establish a violation.

Importantly, however, the Commission noted the ALJ was required to consider the effect of PIB No. P.10-04 for what it is – a public guidance document that informs the agency’s judgment on the danger of falling from mobile equipment. Specifically, the PIP expressly stated manufacturers may comply with these industry standards “in addition” to the measures set forth in the PIB and MSHA inspectors may use certification documents to ascertain whether operators are “providing safe access, fall prevention and fall protection.”.

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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
Lorna M. Waddell, Dinsmore, Of Counsel mine safety and health lawyer
Of Counsel

Lorna Waddell is a member of the Labor and Employment Department. She practices in the area of mine safety and health. 

Prior to joining the firm, Lorna worked for two separate law firms in Morgantown for a total of 13 years. After graduating from law school, she served as law clerk for the late Honorable Robert E. Maxwell, United States District Court for the Northern District of West Virginia. Lorna has also served as an adjunct lecturer on appellate advocacy at West Virginia University College of Law.

304-225-1448
Kelby Thomas Gray, Labor and Employment Attorney, Dinsmore Shohl, Law firm
Associate

Kelby Thomas Gray is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Prior to joining the firm, Kelby practiced in the Beckley, West Virginia office at Pullin, Fowler, Flanagan, Brown & Poe, PLLC where he served as a member of the Litigation Department. Earlier in his career, Kelby served as an Assistant Prosecutor at the Jackson County Prosecutor's Office in Ripley, West Virginia. 

304-357-9944