In an opinion issued on December 10, 2013, Federal Mine Safety and Health Review Commission Administrative Law Judge Richard Manning ruled that allowing operators to perform examinations of mobile equipment immediately prior to an inspection by the Mine Safety and Health Administration (MSHA) effectively provides advance notice of an inspection of the mine, in violation of the advanced notice prohibition in Section 103(a) of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 813(a).
MSHA issued six citations in 2011 at two of Solar Sources, Inc.’s Indiana surface coal mines for the following conditions: defective parking brakes on a loader and two end dump trucks in violation of 30 C.F.R. § 77.1605(b), defective air brakes on two fuel trucks in violation of 30 C.F.R. § 77.1606(c) (one vacated for failure to show the existence of a violation by a preponderance of the evidence), and a missing backup alarm on a shovel in violation of 30 C.F.R. § 77.410(a). Solar Sources argued that all six citations should be vacated based on the MSHA Inspector’s refusal to allow the operator to comply with 30 C.F.R. § 77.1606, which requires pre-operational examinations before every use of equipment. Section 77.1606 states in pertinent part:
(a) Mobile loading and haulage equipment shall be inspected by a competent person before such equipment is placed in operation. Equipment defects affecting safety shall be recorded and reported to the mine operator … (c) Equipment defects affecting safety shall be corrected before the equipment is used.
Solar Sources contended that if MSHA is permitted to issue citations for defects on mobile equipment before the operator has performed a pre-operational examination, then an important incentive for complying with Section 77.1606 – to avoid liability by discovering malfunctions prior to violating the Act – will be removed and the important safety function of Section 77.1606 – to allow miners to find a malfunction prior to operating a piece of equipment – will be undermined.
Judge Manning rejected Solar Sources’ request that the citations be vacated and held that MSHA is not required to allow operator’s to perform pre-operational examinations of equipment prior to an inspection. Invoking the advanced notice prohibition set forth in Section 103(a) of the Mine Act, Judge Manning found that allowing operators to perform pre-operational examinations of mobile equipment and to tag-out defective equipment immediately prior to an MSHA inspection amounts to advanced notice of an inspection. In rejecting Solar Sources’ position, Judge Manning reasoned:
“If I were to accept Respondent’s argument, it would suggest that any mine operator could simply request that an MSHA inspector wait until it examined all equipment and other areas of the mine before the inspection could proceed… Permitting operators to examine and repair equipment directly before inspections would allow operators to ignore Section 77.1606 by not regularly examining equipment or fixing defects.”
Judge Manning declined to follow a May 2011 decision by Administrative Law Judge Zane Gill, Wake Stone Co., 33 FMSHRC 1205, petition for discretionary review granted (June 9, 2011), relating to the pre-shift examination provision in 30 C.F.R. § 56.14100, the equivalent standard to the pre-examination requirement at issue in Solar Sources. In Wake Stone, when the MSHA inspector asked to inspect two pieces of mobile equipment, the operator, a North Carolina aggregates producer, insisted that the vehicles be taken through a pre-shift examination prior to being operated for the inspection, in accordance with 30 C.F.R. § 56.14100. During the pre-shift examinations, the service horns on both pieces of equipment were found to be non-functional. The defects were indicated in the operator’s pre-shift report and the vehicles were tagged as non-operational. MSHA, nevertheless, issued two citations for violations of 30 C.F.R. §56.14132(a) for the defective horns. The operator filed a motion for summary decision requesting that the two citations be vacated. ALJ Gill recognized that the pre-shift examination is an operator’s chance to discover malfunctions prior to violating the Act and held that mandatory equipment safety standards must coexist with the pre-shift examination requirement in 30 C.F.R. 56.14100. In granting the operator’s motion for summary decision and vacating the underlying citations, Judge Gill declined to impose strict liability on the operator for the defective horns and rejected the Secretary’s argument that the operator was trying to “escape” strict liability by feigning the need for a pre-shift examination and the Secretary’s argument that the operator should be liable because the vehicles “might be used” in the defective condition.
Thus, the Solar Sources and Wake Stone decisions create a split in authority for operators and for the Federal Mine Safety and Health Review Commission (the “Commission”). The Wake Stone decision suggests that not only can surface metal / non-metal operators demand to perform a pre-shift examination prior to an MSHA inspection, but that they can also avoid strict liability for any defects on equipment discovered during the course of a pre-shift examination. Conversely, the Solar Sources decision clearly rejects that notion for surface coal operators, definitively stating that MSHA is not required to allow operators to perform pre-operational examinations of equipment prior to an inspection and that such a demand violates the prohibition on advanced notice of an inspection in the Mine Act.
Wake Stone is currently on appeal before the Commission. The Commission held oral arguments on the case in September but has not yet issued a decision. Solar Source has 30 days from December 10, 2013 to appeal Judge Manning’s decision. Patton Boggs is monitoring the appeal status of this decision and will update this Client Alert accordingly.
 30 C.F.R. § 56.14100 states: (a) Self-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift; (b) Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.