Mine Safety Board Deadlocks, Possibly Spawning New Interpretation

By Lars-Eric Hedberg

Members of the mine safety commission are mulling writing a definition of the term “suspended load” after they deadlocked on a ruling that a spreader bar on a crane constituted a load.

As a result of the Federal Mine Safety and Health Review Commission split, a Florida crane company will need a federal appeals court to vacate a safety standard violation and assessed $300 fine ( Sec’y of Labor v. Sims Crane, FMSHRC, No. SE 2015-315, meeting 6/30/17 ).

An administrative law judge had ruled that Sims Crane violated 30 C.F.R. 56.16009 when employees walked under the spreader bar, which was attached to the crane’s hoist hook and used to distribute a heavy load across the connection points. The company was operating the equipment at the SDI Quarry in Miami, and industry groups argued before the commission that the spreader was a component part of the crane used to pick up loads, rather than a load itself.

Commissioner Michael Young said that it would be unfair to impose the ALJ’s new interpretation of the standard on the crane industry, which could change its practices.

Commissioners Robert Cohen and Mary Lu Jordan said they would affirm the judge’s ruling, while Chairman Robert Althen and Young said they would vacate the citation. The commission is acting without a fifth member.

Three of the commissioners would be open to creating a common law rule defining “suspended load” in the standard. There is a question, however, of whether the review commission could push through a binding definition.

Spreader Characterization Dispute

On April 7, 2015, crane operator Milton Minchener had the spreader bar about 25 to 35 feet above the ground so he could scope out the crane at the sand and gravel quarry. He swung the spreader bar to an area where he and William Assad, who was standing under the spreader, could attach the load.

Mine Safety and Health Administration inspector Robert Peters told Assad to move out from under the spreader. Minchener then left the cab and passed under the spreader to speak to Peters. When Peters told Minchener he couldn’t walk under the spreader, Minchener disagreed and walked back under it toward the cab.

Peters issued a citation to Sims for failing to stay clear of a suspended load and designated it moderate negligence. The Department of Labor recommended a $100 penalty.

Ordinary Meaning Ruling

In May 2016, Administrative Law Judge Thomas P. McCarthy ruled, based on the ordinary meaning of the term “load” and non-binding law judge decisions, that the spreader bar was a load for purposes of the standard. He assessed a $300 penalty because Minchener “blatantly dismissed the inspector’s instruction.”

In a Feb. 6 policy letter, MSHA clarified how it interprets 30 C.F.R. 56.16009, saying the standard generally requires miners and riggers to stand clear of load-attaching equipment. But the agency “recognizes” they must stand near such equipment to attach and detach loads.

The letter also said that MSHA won’t issue a citation for failure to stay clear if measures are in place to protect miners, and that the interpretation aligns with the standard’s purpose.

The policy letter was probably a direct result of McCarthy’s ruling, according to Nick Scala, co-chair of the Conn Maciel Carey LLP’s MSHA • Workplace Safety Practice Group.

The policy letter references the OSHA standard, 29 C.F.R. 1926.1401, which includes load-attaching equipment in the definition of load, Scala told Bloomberg BNA June 30. But this doesn’t mean it has to be followed during enforcement actions.

Commissioners Stake Narrow Positions

Chairman Althen urged the commissioners to decide the narrow question presented: whether the spreader constituted a load under the standard. He said he would vacate McCarthy’s ruling because the inspector didn’t know what he was looking at.

Commissioner Young said he would vacate because the ruling and department’s position was “inconsistent” with the standard, the Mine Act, practical consequences, and how the industry operates.Jordan and Cohen said they would affirm because Minchener proceeded under the spreader and, when told not to do so, walked back under it.

As to the letter, Cohen said it was a “short-circuit solution” and insufficient because it can be changed.

“It isn’t right for the agency to put regulated entities in position where what they are doing is illegal under the standard, but tell them we won’t prosecute you for it,” Cohen said.

According to Althen, the policy outlined in the letter is the “correct interpretation” and should be followed.

But Propose New Rule

Young suggested the commission define the term “suspended load” in their opinion.

“A rule would be practical—something industry and inspectors can understand,” Cohen said. “Generally, don’t go into the fall zone if you’re not rigging.”

Althen said he would be willing to work with Cohen and Young on a definition, but said, “It would be difficult to write regulations in an area we don’t know much about.”

Questionable Effect of Definition

When the review commission cannot reach a majority decision, the ALJ decision becomes a final, appealable order lacking precedent-setting effect. A 2-2 decision on the violation, but with three commissioners agreeing on a definition of suspended load, would raise questions of precedent.

“There is a question as to whether any new common law definition would be binding because the decision itself would not be binding in 2-2 split,” Scala told Bloomberg BNA.

“If three or more commissioners come together and write a definition, it could carry weight because administrative law judges would probably apply that definition down the road,” he said. “But would they be required to?”

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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