By R. Brian Hendrix

Has a Mine Safety and Health Administration (MSHA) inspector ever inspected a piece of mobile equipment, despite the fact that it is not running or in operation and has not had a pre-shift inspection? Has an inspector ever asked you to operate a piece of equipment or machinery just so he or she can inspect it? Did the inspector issue a citation for an alleged violation discovered during the inspection of equipment or machinery after you started it up? If you answered any or all of these questions with a “yes,” you are not alone. Indeed, it seems as though the number of mine operators who are answering “yes” to these questions is growing by the day. Here’s why, along with a few suggestions aimed at reducing your liability in these kinds of situations.

MSHA believes that if equipment or machinery is available for use, it has the authority to cite any defect or other violation it finds. Additionally, MSHA may take the position that a piece of equipment that is tagged out, but not otherwise disabled, is “available for use.” Citation and Order Writing Handbook for Coal Mines and Metal Nonmetal Mines, PH08-I-1 (March 2008). Here’s an example from the Handbook that illustrates MSHA’s point:

“Scenario: A loader was observed parked and not operating at the time of inspection. It did not have the required seat belts installed. The inspector determined that the machine was used as a spare and was not out of service. The inspector did not issue a citation for the lack of seat belts. The rationale used by the inspector was that the loader was not operating at the time he or she observed the violation.”

This evaluation is not correct—a violation was observed on mobile equipment that could be started and used any time subjecting miners to possible injury or death. A citation shall be issued for all violations found on equipment or machinery not taken out of service and tagged prior to being inspected by MSHA.

Basically, MSHA will inspect equipment or machinery if it could be used or placed into service, regardless of whether the equipment or machinery is in fact in use and regardless of how likely it is to be used.

What does it take to remove equipment or machinery from service? MSHA instructs its inspectors to issue a citation for “all violations found on equipment or machinery not taken out of service and tagged prior to being inspected by MSHA.” However, it also tells its inspectors that unless the equipment or machinery in question is physically disabled, MSHA may treat it as “available for use.” According to MSHA: “‘removed from service’ does not mean that the mine operator stopped using and parked a piece of equipment (e.g., front-end loader, truck) or a mining unit (e.g., portable crusher, screening unit) when it could or can be restarted and easily placed back into service.”

To MSHA, in order to remove equipment or machinery from service, a mine operator must “permanently incapacitate” or “render [it] inoperable.” Here’s the example MSHA uses in its Handbook to show what this means in practice:

“Scenario: A loader is cited for not having an audible back-up alarm installed. The mine operator (or contractor) takes the tires off the loader, places it on blocks, removes the battery, and welds the doors closed. Any of these actions could qualify the equipment as being “removed from service” and justify termination of any outstanding citation(s) or order(s).”

In years past, it was common for an inspector to treat a piece of mobile equipment that was parked and tagged out as “removed from service.” That certainly makes sense, and it’s a more reasonable approach. However, according to MSHA’s Handbook, a tag may not be enough.

Whether MSHA’s approach or interpretation is correct as a matter of law (or even reasonable) is very much open to debate, a debate that the Federal Mine Safety and Health Review Commission will likely be asked to resolve. In the meantime, however, mine operators need to know what their rights are when MSHA directs machinery or equipment to be placed into operation and, more importantly, how best to deal with such a situation. Here are the three most common questions mine operators ask us when in these situations:

Does MSHA have the authority to inspect equipment or machinery that is not in service? Yes. MSHA inspectors have broad authority under the Federal Mine Safety and Health Act to inspect equipment or machinery on mine property. MSHA’s inspection authority—its right of entry—isn’t unlimited, but it’s incredibly broad. The fact that the machinery or equipment in question is not in service at the time of the inspection does not change or limit MSHA’s authority to inspect it.

Can MSHA require a mine operator