‘Attended’ does not require being inside drill cab, mining commission affirms

A drill operator need not to be inside the cab of his drill at all times to comply with a mine safety standard stating that drills in operation “shall be attended at all times,” the Federal Mine Safety and Health Review Commission has ruled, upholding a judge’s ruling vacating citations against contractor Drilling and Blasting Systems, Inc. (D&B). Sec’y of Labor v. Drilling and Blasting Systems, Inc., No. SE 2012-510-M (Feb. 22, 2016).  Avi Meyerstein at law firm Jackson Lewis comments.

In March 2012, a Mine Safety and Health Administration inspector cited a North Carolina quarry on consecutive days for two alleged violations of the Mine Safety and Health Act’s standard on tending drills in operation, 30 CFR §56.7012. The standard states, “While in operation, drills shall be attended at all times.”

The agency proposed a $1,080 fine. In both instances, the drill attendant was outside the cab while the drill was in operation. The inspector alleged the drill was not being “attended,” in violation of the standard. He argued the worker needed to be at the drill’s controls continuously in the event of an emergency, such as if the steel or drill bit became stuck in the drill hole, causing the steel to disintegrate under pressure and hurl steel fragments through the air. The inspector described an accident having this alleged scenario.

The operator had argued successfully before a judge the drill operator had other assigned duties, including critical safety-related tasks, which could not be fulfilled from inside the drill cab. These included checking surrounding ground conditions for changes that could destabilize the drill, possibly causing it to tumble over the highwall, and checking fluid levels on the drill engine and compressor for leaks or other malfunctions. The drill has a sensor designed to shut down the drill automatically if the equipment begins to malfunction, the operator noted.

The commissioners devoted a substantial portion of their unanimous ruling to summarizing Administrative Law Judge (ALJ) Priscilla Rae’s vacatur decision. She had determined the term “attended” in the standard was ambiguous and depended upon circumstances. She reasoned that MSHA’s interpretation was not entitled to deference because it was plainly erroneous for two reasons.

First, she noted MSHA had vacated an identical citation against the operator in 2010 at a different mine. In that instance, the contractor had convinced an MSHA supervisor that the operator’s practice of having the drill operator leave the controls was permitted under the standard. Second, the judge contended that accepting MSHA’s insistence the operator remain at the controls could lead to dangerous consequences because the operator would not be in the best position to deal with safety hazards, including failing ground conditions, should they suddenly arise.

Four individuals with lengthy experience in the mechanics and physics of drilling had testified for the operator. All four stated they had never heard of drill steel fragmenting after getting hung up in the ground. The inspector testified that the operator’s equipment was in good condition. The ALJ credited their testimony over the inspector’s, who had no drilling experience and had actually declined a chance to gain such experience.

The inspector stated he saw no reason why the operator needed to leave the cab. MSHA contended that the operator could assign a second person to observe conditions outside the cab. In its decision, the commissioners noted MSHA had failed to provide sufficient evidence to justify its position. For her part, ALJ Rae credited the testimony of the operator’s owner, who said it was industry practice for operators to remain outside the drill for much of the time it is operating. This was reinforced by the National Stone, Sand & Gravel Association, which stated in an amicus brief that adding a second person would alter decades of previously accepted safety, management, and personnel practices.

The commissioners concluded, “The Judge was justified in crediting the testimony of the operator’s witnesses experienced with drilling activities, and the testimony of the operator’s expert witness, as against the testimony of one inspector who had neither training nor experience with drilling operations. The Judge relied on testimony regarding the safety advantages of not requiring fixed stationing in the cab, the absence of any history of the type of incident described by the inspector, the lack of any enforcement history, and the different positions taken by MSHA in prior matters.” Those factors, combined with MSHA’s providing less than “the most natural reading” of the standard, gave them no basis for siding with the agency, the commissioners said.

In this case, the operator was cited because its drill operator was 18-20 feet from the drill. The commissioners accepted the operator’s interpretation that the standard allowed the drill operator to be located anywhere within the area where drilling is being done that permits drilling activity to be monitored. Barring reversal should MSHA appeal, the case provides valuable guidance to drill operators concerned about compliance with the standard.

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