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Section: 56.11001
Date: 10/04/2012
District: SC
Negligence: Moderate
Injury or Illness: Unlikely
Injury or illness could be expected to be: Lost Workdays or Restricted Only
Significant and Substantial: No

Condition or Practice: The left side steps used to access the Cat 990 Loader located in the pit area was broke off below the top step. This condition exposes miners to fall hazard.

Action to Terminate: The step was replaced.

Why this concerns you: The 990 loader has 2 access steps to get on the machine so there was always safe access on and off machine. This was pointed out when the citation was being written and later at the close out. We were informed inspector would have to go back to the office and get back with us. We were contacted and informed citation now changed to 56.14100b-Defects on equipment involving safety shall be corrected in a timely manner. Lower hanging step was broken on 10/3, management informed of damage on 10/4 before inspector cited, and repaired on 10/5. What is a timely manner? We repaired this in less than 24 hours from time it was reported and at no time was there not safe access to and from the cab of the machine.

Abatement Suggestions From Industry

You correctly rebutted the "safe access" citation by pointing out there was an alternative safe method of access. It is not uncommon for MSHA to change its "theory of violation" once faced with facts such as these. Unfortunately, it IS common to cite broken steps as a defect affecting safety under 56.14100 when the equipment is still in operation after the company was informed of the defect. Normally, the operator who discovered the defect should tag out the equipment at that point. If this was S&S you would have the defense that there was no need to use those steps before they were repaired because of the alt. access method. They will counter that this side might have to be used in the event of fire, roll over etc. that prevented the other steps from being used. The real issue is when and how management learned of the defect and was there an opportunity to repair it before it was discovered by MSHA. See a case we won on this issue, Loudon Quarries (2012 case before an ALJ). I am assuming the equipment was in use because it says it was in the pit. If it was simply parked there, there may be a defense if it was not preshifted that morning yet. You do have to be careful in arguing this citation, however, because if management had actual knowledge and still allowed it to be operated with the defect, MSHA COULD raise the negligence to high. Since this standard is a "Rule to Live By" it may be specially assessed anyway. Because it is non-S&S, they cannot change it to a D unless you had another 104D first that was S&S. Good luck!
- posted on 10/05/2012

We have effectively defined "timely manner" as the end of the next shift following the shift a defect was reported.
At this point my suggestion is to prepare your case for contest, because you were switched from a $100.00 citation to one that is now "Specially Assesed"
- posted on 10/05/2012

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