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$60,000 Penalty Upheld Where Company Failed to Guard Return Roller

By Ellen Smith

Failing to have a proper guard for a return roller on a conveyor cost a quarry $60,000 in an MSHA fine, upheld on Jan. 28 by Federal Mine Safety and Health Review Commission Judge William Moran.

The fine was levied after a near-fatal accident at the Torrance Quarry in New Mexico on April 21, 2009, when a miner was pulled into the return roller of a conveyor, and he became lodged between the roller and the belt. The company was cited after the accident for a violation of §56.14107(a), and also cited and fined $6,000 for failing to report the accident within 15 minutes.

The injured miner’s job required him to clean up and shovel material that fell off the conveyors, and occasionally to dislodge rocks that became caught in the conveyor. MSHA investigators found that the miner went underneath the metal support frame and was under the conveyor belt, trying to dislodge a rock with a shovel. A return roller grabbed the shovel and drew him into the machinery.

The company tried to argue that the return roller was guarded by its location, and that there was no access to it without intentionally going underneath the conveyor. The company contended incidental contact could not occur, and argued that the standard did not cover an intentional action.

However, MSHA’s witness, testified that the only exception to the guarding standard is for moving machine parts more than seven feet away from walking or working surfaces, and that no exceptions existed for machinery being too low. Testimony at the hearing also indicated the company did not have a lockout/tagout policy when a worker was shoveling material from beneath the conveyor.

ALJ Moran noted that the tail pulley was completely guarded underneath, while the return roller was not. “The critical point, however, is that the return roller was easily accessible and certainly did not require ‘crawling’ to gain access to it,” the ALJ said. In contrast, the tail pulley had been completely guarded and contact with it would have been difficult.

Despite the operator’s argument that the return roller was guarded by location, the standard does not allow for an exception for that reason. Also, the ALJ said, it was very easy for anyone to bend down and move under the conveyor frame and be in close proximity to the unguarded return roller. The operator did not post warning signs or barriers.

In affirming the S&S and “high negligence” designation, the ALJ noted that MSHA advised the company two months before the accident of the need to guard 20-30 return rollers.

MSHA also cited the mine for failing to make notification of the injury within 15 minutes, as required by §50.10.

The superintendent at the quarry heard of the accident and made his first calls to corporate offices, despite knowledge that the miners needed medical attention. His next calls went to 911 and then return calls to management. The superintendent said he did not feel death was imminent, but admitted he did not make any further inquiries about the miner’s condition. MSHA was not informed until almost 90 minutes after the accident. Because of this delay, the ALJ said there was a high level of negligence, and he increased the fine by $1,000 to a total of $6,000.

Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, She has been covering mining issues since 1987 and has won 31 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211, or at This email address is being protected from spambots. You need JavaScript enabled to view it..