On March 19, 1999, ASARCO, Inc.(ASARCO) filed a petition for modification of 30 CFR §56.14100(a), for its ASARCO Ray Complex, (I.D. No. 02-00150), located in Hayden, Arizona. The mine is a multiple bench, open pit copper mine.
The relevant standard 30 CFR §56.14100(a), Safety defects; examination, correction and records, provides:
(a) Self propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift.
The petitioner has proposed to have a single employee conduct the required 30 CFR §56.14100(a) examination of the buses, rather than the individual bus drivers who operate the vehicles on the shift. The petitioner alleges that the proposed alternative inspection procedures stated in its petition would offer equivalent protection to the miners as compliance with the standard. The petitioner also alleges that the application of the standard would result in a diminution of safety to the miners.
The Mine Safety and Health Administration (MSHA) investigators conducted an investigation relevant to the merits of the petition and filed a report of their findings and recommendations with the Administrator for Metal and Nonmetal Mine Safety and Health. After a careful review of the entire record, including the petition and MSHA's investigative report and recommendations, the Administrator issued a Proposed Decision and Order on September 2, 1999, granting the Petition for Modification with certain specified conditions.
On October 1, 1999, the Petitioner filed an appeal regarding conditions No. 3, 6, and 7 of the Proposed Decision and Order of September 2, 1999 with the Chief Administrative Law Judge for the U.S. Department of Labor, pursuant to 30 CFR §44.14.
On October 22, 1999, the parties reached a settlement agreement which included modification of some terms of the Proposed Decision and Order dated September 2, 1999. On November 12, 1999 ASARCO filed a motion withdrawing its request for a hearing and moved that the case be remanded to the Administrator in order for this amended decision and order to be issued to replace the proposed decision and order of September 2, 1999.
On November 22, 1999 the Administrative Law Judge remanded the case back to the Administrator for Metal and Nonmetal Mine Safety and Health for further action consistent with the settlement agreement.
This Amended Proposed Decision and Order incorporates the agreed modifications to the terms set forth in Conditions No. 3, and 6(i) and 6(x).
Findings of Fact and Conclusion of Law
30 CFR §56.14100(a) requires that self propelled mobile equipment used during a shift be inspected by the equipment operator before being placed in operation on that shift. On March 9, 1999, during the investigation of a Section 103(g) complaint, MSHA found that ASARCO had a single employee conducting the pre-shift examination of the buses, rather than having the individual driver of each bus perform his/her own inspection. The petitioner was cited for a violation of 30 CFR §56.14100(a) for not having each driver inspect his/her respective bus.
The petitioner claims he has used this cited procedure since 1993. The petitioner maintains that the individual who inspects the buses is a mobile equipment operator and drives the buses for fueling and inspection purposes to the pit office. The MSHA investigation indicated that an effective method of ensuring that all of the buses were inspected and cleared for use during the shift was not established and an inspection training program was not in place to insure a competent and consistent level of inspection. This could only be corrected with the inclusion of additional terms and conditions. The representative of the miners was not opposed to the granting of the petition as long as each equipment operator was allowed to do a short follow up inspection prior to putting his/her bus in service during the shift.
Therefore, the Administrator finds that the petitioner has demonstrated that the requested modification with the additional terms and conditions will provide an equal or greater level of protection than compliance with the standard, provided he complies fully with the conditions set forth in the Order.
Order
Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator, and pursuant to Section 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C., Section 811(c), it is hereby ordered that a modification of 30 CFR §56.14100(a) at ASARCO, Inc., as it applies to the alternative method of conducting pre-shift inspections for the buses used to transport miners at the ASARCO Ray Complex, is hereby:
GRANTED, conditioned upon compliance with the following:
1. The petitioner shall develop an effective method of identifying the vehicles that are safe for operation and/or have received the required pre-shift inspection.
2. Defective vehicles shall be identified as disabled and not used until repaired.
3. The petitioner shall task train the individuals who are assigned to inspect the buses used at the mine site, pursuant to 30 CFR Part 48.
4. The petitioner shall maintain the training records of all personnel selected to do the pre-shift inspections. Maintaining the training records will insure that each inspector is properly trained.
5. The inspection of each bus shall be conducted within two hours of the start of the shift on which it is to be used.
6. The pre-shift inspection shall detect defects affecting safety and shall consist of, but not be limited to, inspecting the following.
(a) Radiator Water
(b) Engine Oil
(c) Transmission Oil
(d) Parking Brake
(e) Fluid Leaks
(f) Body Damage
(g) Service Brake/Performance
(h) Operation of Doors
(i) Tires: Hazardous conditions
(j) Fire Extinguisher
(k) Windows
(l) Windshield Wipers
(m) Strobe Light
(n) Head Lights
(o) Taillights
(p) Cleanliness
(q) Exhaust System
(r) Stop Lights
(s) Turn Signals
(t) Horn
(u) Backup Alarm
(v) Engine Power
(x) Adequate steering control
7. The driver who is to put the bus in service shall insure that the bus has been cleared for use during the shift and ensure that the Parking Brake, Service Brake, Tires, Head Lights, Horn and Steering are normal prior to operating the vehicle. The driver shall record any defects affecting safety and report such defects to the mine operator.
The Petitioner's method of inspection should ensure full compliance with all relevant mandatory safety standards. If MSHA inspectors find violations that should have been corrected as a result of the inspection this would be considered a change in circumstances that would perhaps warrant revocation.
For /s/ Patricia W. Silvey
_________________________________
Earnest C. Teaster, Jr.
Administrator for
Metal and Nonmetal Mine Safety and Health
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