Stuck Between a Rock and ... MSHA

Equipment manufacturers play a critical role in a mine operator’s compliance with the Mine Safety Health Administration (MSHA) regulations. Mine operators expect that OEMs provide them with equipment that meets MSHA standards—standards which can be ambiguous and subject to the interpretation of the MSHA inspector. Equipment manufacturers face fines of up to $10,000 and five years’ imprisonment under section 110(h) of the Mine Act if convicted of falsely representing that their equipment complies with MSHA regulations.

Although the purpose behind MSHA’s enforcement power is respectable—preventing death, disease, and injury from mining and promoting safe workplaces for miners—mine operators are finding 100% compliance to be problematic, if not impossible.

There is little guidance as to what conditions violate MSHA regulations, and in many cases the agency will not recognize compliance with industry standards, such as the International Organization for Standardization (ISO) or the Society of Automotive Engineers.

Consequently, equipment manufacturers are unable to assure customers that new equipment will not require an immediate retrofit to satisfy MSHA’s interpretation of subjective standards, leaving them stuck between a rock and a hard place.

Why is compliance difficult?

MSHA regulations are vague at best; for example:

“[S]afe means of access shall be provided and maintained to all working places.”

“[M]oving machine parts shall be guarded to protect persons from contacting moving parts that can cause injury.”

These subjective standards lead to differing interpretations of what is deemed to be “safe,” what constitutes a “working place,” and what scenarios an inspector may imagine in which a person would contact “moving parts.”

These are just the first of a long line of questions that need answers, to which MSHA invariably responds, “performance standards are determined by the present circumstances in each case.”

What this means for customers

The lack of clearly defined rules is especially frustrating for operators that have invested millions of dollars and countless hours purchasing and setting up new equipment only to find that MSHA considers the equipment unsafe.

Additionally, the modifications that the inspectors require to abate the citations often risk sacrificing equipment warranties. Worse yet, the retrofitting of equipment may even present fresh safety issues as a result of modifying the original equipment design, which has undergone hundreds, if not thousands, of hours of safety testing under original design conditions.

Nevertheless, operators have little option but to comply. When MSHA issues a citation for a violation of a standard, the operator becomes subject to fines ranging from $112 up to $70,000 for a single citation; $220,000 for “flagrant” violations; and up to $500,000 for repeat criminal violations.

Although the threat of large fines is real, it is the cost of abating the condition that has caused some operators to question whether they should continue to remain in the business. This is especially true for companies who operate with nearly identical configurations on multiple sites; the operator risks even greater penalties for continuing to operate while knowing the condition is not in compliance with MSHA standards.

In a recent enforcement blitz, operators with new truck scales have been cited because inspectors deemed the manufacturer-provided 9-inch rub rails insufficient and have been requiring that the scales be retrofitted so the rails extend to mid-axle height of the largest truck traversing the scale. Although the initial citation was only $112, the cost of retrofitting the equipment to comply with this new interpretation could reach $40,000 for a single scale.

What equipment manufacturers can do

Use contract language. Disclaim any representations that the equipment complies with MSHA regulations. Even if an OEM is certain that the equipment is safe, the risk that MSHA will find a condition that does not comply with the regulations is high.