By: Nicholas W. Scala

A Federal Mine Safety and Health Review Commissions judge’s decision sets a new legal framework for what MSHA requires in the safe use of spreader bars, and emphasizes that reliance on similar OSHA standards in this area is not adequate on a mining site, even for independent contractors who normally work under OSHA’s jurisdiction.

The judge’s ruling in MSHA v. Sims Crane establishes that a spreader bar is equivalent to a “suspended load” for purposes of MSHA compliance. Also noteworthy: the judge found a “high” level of negligence because a crane operator walked under a suspended spreader bar after an inspector expressly said not to do so.

At issue is a citation by MSHA at a quarry in Florida City, FL issued in April 2015, where contractors including Sims Crane were on-site to complete modifications to the plant.

The citation alleged that Sims’ crane operator and helper did not stay clear of a suspended load, violating MSHA standard 30 CFR 56.16009. This would be a fairly straightforward citation from the point of view of meeting the MSHA standard, but for the question of whether a spreader bar should be considered a “suspended load.”

Judge Thomas P. McCarthy concurred with the inspector’s determination that the spreader bar was a “load” under the standard, and not only upheld the citation but boosted its negligence to the “high” from “moderate” classification.

While decisions by Administrative Law Judges are not binding on all MSHA litigation, unless or until the Review Commission rules affirms the ruling, the decision will be a reference for other judges when deciding citations and orders issued under 56.16009, a MSHA Rules to Live By standard.

Defining A ‘Load’

Though a loss for the operator, this ruling helps clarify MSHA interpretations of the standard with respect to what a “suspended load” actually is. As the decision points out, standard 56.16009 aims to prevent individuals from being hit and injured by such loads should they fall or swing.

In this case the inspector found that the crane operator and helper violated the standard by walking under the suspended spreader bar. Sims Crane, on the other hand, argued that OSHA standards assert that the spreader bar did not constitute a “load” and that its workers were allowed to be within the spreader bar’s fall zone. Sims primarily trained for and worked on OSHA regulated job sites.

Judge McCarthy noted that the meaning of “load” was the crux of the matter, and that the term remained vague under MSHA law:

“MSHA regulations do not define the term ‘load,’ nor has the Commission provided a clear definition of the term. In the absence of a statutory or regulatory definition, the Commission applies the ordinary meaning of a term.” (citing Twentymile Coal Co.)

The American Heritage Dictionary of the English Language defines a “load” as as “weight or mass that is supported,” Judge McCarthy noted. In this case, the spreader bar weighed about 625 pounds and was supported by cables.

“Although the spreader bar was secured by cables and pins, those equipment pieces could fail and cause the spreader bar to fall,” the judge wrote. “Under the ordinary meaning of the term, therefore, I conclude that the spreader bar constituted a ‘load’ for purposes of [the regulation].”

OSHA Compliance Irrelevant

McCarthy also rejected the employer’s defense that it was following OSHA regulations, and therefore should not receive an MSHA citation on the same issue, writing that “OSHA standards are not legally binding on MSHA.”

Also in this case, the employer had stipulated that it is subject to jurisdiction of the Mine Act, was engaged in mining activities at the relevant times, and is an operator as defined by the Mine Act. Thus the judge wrote that the OSHA regulations and definitions relied upon “are not dispositive for purposes of determining whether Respondent violated the MSHA standard.”

Not only that, but the judge argued that his position on spreader bars as suspended loads was not inconsistent with OSHA. “Although the [OSHA] standard provides an exception for working gear, such as a spreader bar, it does not explicitly permit standing beneath working gear,” he said. Also, while OSHA provides an exception for some situations, the judge argued that did not apply here.

‘High Negligence’ Found

Also noteworthy was the judge’s reasoning in deciding to increase the citation to “high” negligence (and the penalty), an available but lesser used power of administrative law judges.

In determining the gravity of the alleged violation, Judge McCarthy noted that MSHA has defined negligence by regulation in the civil penalty context (the Part 100 definitions). However, the judge emphasized that the Commission recently held that its judges are not required to apply those level-of-negligence definitions and may evaluate negligence from the starting point of a “traditional negligence analysis.”

Judges may find “high negligence” in spite of mitigating circumstances – and likewise, “moderate negligence,” without identifying any factors that mitigate, the judge noted, citing Brody, an earlier Commission case.

“I find that this violation resulted from Respondent’s high negligence,” the judge concluded, saying the inspector explicitly informed them that walking underneath the suspended spreader bar violated an MSHA standard. Judge McCarthy added:

“At that point, I find that the operator should have known of the violative practice (yet) blatantly dismissed the inspector’s instruction and violated the standard by walking underneath the spreader bar a second time.”

Conclusion

Sims Crane still has the option of taking this case higher by appealing to the Review Commission, so the judge’s findings may yet be reversed. But for now, the big takeaway is that MSHA inspectors may determine that spreader bars are “suspended loads” under 56.16009 and workers must stay clear of them to meet the MSHA’s interpretation of the standard.

Employers on mining sites can still run afoul of MSHA even if they believe they are complying with OSHA standards on this issue – as is the case in many areas where the agencies seem to overlap. All companies that use spreader bars in their operations and especially on mining sites should review their compliance regarding this safety concern.