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ALJ Sustains $2,000 Penalty for Guarding Violation



By Ellen Smith

ALJ Margaret A. Miller affirmed several citations against Blue Mountain Production Co., the largest being a $2,000 fine for an S&S and unwarrantable failure violation of §56.14107(a), which requires moving machine parts be guarded to protect persons from moving parts that can cause injury.

The company also raised a “fair notice” defense to several other guarding citations issued by inspectors, arguing that machines lacked guards for several years, leaving the operator to believe it was in compliance with the guarding standards. The ALJ agreed with the operator on one of the guarding citations and vacated it for lack of notice.

The company operates the Jasper Creek Mine in Blue Mountain, Miss. An MSHA inspector observed three employees working on a 14-in. drive belt pulley that was actively turning on a belt conveyor. No guards were visible at all on the east side belt discharge pulley or on the head pulley. This was the fourth violation of the same standard in the previous two years at the mine. The inspector said the plant manager engaged in aggravated conduct constituting more than ordinary negligence because he knew the guard was missing and allowed employees to work on it when the machinery was in motion. He called it an unwarrantable failure, with high negligence and set a penalty of $2,000.

Mine witnesses said no one was in the immediate area of the unguarded pulley on the day of inspection, but ALJ Miller said it did not matter; the area could easily be accessed and in fact the pulley had to be regularly serviced. A miner could make one mistake and could easily catch a sleeve, which could easily pull him into the unguarded portion of the shaft on the head pulley.
BLUE MOUNTAIN PRODUCTION CO., 10/18/10, civil penalty proceeding, Docket Nos. SE 2009-68-M and 69-M

In upholding the $2,000 penalty, Miller found the Secretary proved the violation and that it was S&S. The ALJ also sustained the unwarrantable failure, finding that supervisors were present but gave no warnings, did not hold a safety meeting before starting up the conveyor and did not install barricades, even though the lack of guards could immediately be seen.

The company successfully argued that it did not have “fair notice”­­­ in the case of one of its guarding violations. The company was cited where an MSHA inspector observed no guards for an exposed rotating shaft between the speed reducer and the drive pulley. This area is high and can only be reached by ladder. The pulley in this area has to be greased monthly but a long grease line allows for maintenance without getting too close to the moving parts.

On this citation, ALJ Miller said it was “a close call for the use of the fair notice defense.”

Though the area presents a hazard because of pinch points and moving parts, it is elevated and set back from walkways. The company said MSHA inspectors came by many times and never cited the area.
“Given [the operator’s] clear and convincing testimony that he passed the position many times with an inspector and a guard was not mentioned, he understood that one was not needed. Therefore, in this case, the operator has shown the fair notice defense applies and for that reason, I vacate the citation,” ALJ Miller said.

Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, www.minesafety.com. 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..