April 2003
Trying to Hit a Moving Target?
Producer finds out the hard way that MSHA can amend its citations in the middle of litigation.
By Adele Abrams, Esq., CSMP
As many in the mining industry have learned through unfortunate experiences, there is no “statute of limitations” on MSHA violations (although inspectors are directed by the Mine Act to issue citations with “reasonable promptness” once a violation is discovered). What is not often realized, however, is that MSHA can amend its citations in the middle of litigation… including after discovery has taken place.
This right was reaffirmed in Aggregate Industries West Central Region, Inc. (ALJ Manning, January 2003), in which the Secretary’s motion to amend the citation at issue, in order to allege violations of two alternative safety standards, was granted over the company’s objections. The case involved a fatal accident Jan. 21, 2001, where an employee was killed after another worker accidentally started a log washer where the first miner was performing repairs. MSHA originally issued a citation under 30 CFR §56.12016, which requires that electrically powered equipment be deenergized before mechanical work is performed. After written interrogatories were completed, and the inspector was deposed by the mine operator, MSHA sought to add, in the alternative, a violation of 30 CFR §56.14105, which provides that repairs or maintenance of machinery or equipment shall be performed only after the power is off.
The mine operator argued that it was prejudiced because it had relied on MSHA’s original answers in its discovery responses, which now appeared “misleading and disingenuous at best,” and because MSHA did not discuss the motion with Aggregate Industries’ counsel in advance. It argued that MSHA knew or should have known that the safety standard originally cited did not support the alleged violation set forth in the citation. MSHA responded that the mine’s attorney had questioned the inspector about both standards during his deposition, and that there was still time to conduct additional discovery.
Judge Manning ruled in MSHA’s favor, finding that ample notice was provided to the mine operator because no trial date had been set and so proceedings were in the “pre-hearing stage.” No prejudice was found because the proposed amendment did not change the underlying condition or practice described in the citation, and it did not put different facts at issue. In light of this ruling, mine operators must be prepared to defend against modified citations long after they send in the “green card” or file a Notice of Contest, and they should anticipate that more than one deposition of an issuing inspector may be required if MSHA changes its theory of the case mid-stream.
Part 48 Citation Not “S&S”
In a somewhat startling decision, ALJ Hodgdon recently ruled that Part 48 citations cannot be deemed “significant and substantial” because the training rules do not satisfy the definition of “mandatory health or safety standard.” In Eastern Associated Coal Corp. (ALJ Hodgdon, January 2003), the judge noted that Section 3(1) of the Act, 30 U.S.C. §802(1), defines “mandatory health or safety standard” as “the interim standards established by titles II or III of the Act, and the standards promulgated pursuant to title I of this Act.” Mandatory safety and health training is not included in either titles II or III, nor is it included in the mandatory standards promulgated under title I, which are clearly labeled as such (30 CFR Parts K, M and O). ALJ Hodgdon found that Section 104(d)(1) clearly states that only violations of “mandatory health or safety standard[s] can be significant and substantial.” The citation at issue, under 30 CFR §48.11, was found to be non-S&S, and a $475 penalty was assessed. On March 10, the Commission granted the operator’s Petition for Review on Part 48 training.
Mine Entry Battle Continues
Southwest Quarry and Materials, Inc., lost another round in its fight to bar MSHA from its quarry site, this time costing the mine operator $9,500. In January 2003, ALJ Manning approved MSHA’s proposed penalty after the operator failed to answer the Secretary’s Motion for Summary Decision. MSHA had argued that the issue of MSHA’s access rights had already been determined by the U.S. District Court (E.D. Mo.) in Chao v. Chester McDowell, and therefore contest of the latest Section 103(a) action was barred by collateral estoppel and the judge agreed. In the 2002 decision, the U.S. District Court fined the mine operator $100,000 and sentenced McDowell to 30 days in prison for impeding MSHA’s ability to conduct inspections under the Mine Act on four separate occasions. The sentence and fine had been suspended provided that Southwest Quarry complied with the court’s injunction against barring inspectors from the site. In the latest U.S. District Court ruling, it was determined that the injunction was violated, involving the same impediment to an inspection at issue in the Commission proceeding. ALJ Manning held that the $9,500 penalty was proper in light of the statutory criteria and because the mine operator had engaged in high negligence, including “threatened physical harm” to MSHA inspectors.
Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call 301-595-3520.
Counting the Days to Challenge MSHA
Don’t be late! You only have two chances to file formal legal contests to violations issued by MSHA.
By Mark Savit
Whenever an important event is coming up, we count the days until it happens. Holidays, birthdays, anniversaries, and vacations are just a few examples of the kinds of events that we normally anticipate with such enthusiasm that we actually count off the days until they arrive. For lawyers, and in the case of MSHA citations, for you, counting days takes on even greater significance. You see, everything in the law functions on deadlines. For instance, there is only a certain amount of time after a car accident during which you can file a lawsuit against the person who hit you. Although it varies from state to state, it generally ranges from one to three years. These time limitations can be severe. If you file a lawsuit after the allowed time has expired, your suit will be dismissed. If you’ve hired a lawyer and the lawyer fails to file within the proper time, the lawyer will face sanctions as well.
The same is true in the world of MSHA citations. Although there is no set time following the occurrence of a violation, the Mine Act requires that a citation be issued with “reasonable promptness” after the inspector determines that a violation has occurred. Now, “reasonable promptness” in MSHA time is a little different than it is for most of us. The courts have generally ruled that, unless there has been prejudice to the mine operator (i.e. the unexpected death of a critical witness, or the destruction of critical evidence that would have been preserved but for the delay) MSHA can wait longer than a year to take enforcement actions. In fact, although we frequently challenge MSHA’s promptness, we generally advise clients that, unless the delay is longer than 18 months, it will take a strong showing of prejudice to obtain a dismissal solely on the grounds of delay.
There are, however, a number of fixed deadlines in the Act and the regulations that many people (including a number of MSHA inspectors) do not understand.
The Act allows an operator two opportunities to file formal legal contests of the violations issued by MSHA. The first one expires 30 days after a citation is “received” by the operator. If an inspector tells you about a violation June 2, but doesn’t hand it to you until the close-out June 5, the date on the citation will be June 2. But, since you didn’t actually receive the citation until the fifth, the Notice of Contest will not be due until July 5. Of course, if the 30-day deadline falls on a weekend or holiday, the Notice of Contest will not be due until the next business day. This is what’s known as a “jurisdictional deadline.” That means that if the Notice of Contest is not filed within the 30-day time period, that right is completely lost. Okay, there are some legal maneuvers that might allow for late filing, but they rarely succeed.
I know what you’re thinking. Don’t I have 10 days to ask for a conference? Isn’t that what you mean? This is an extremely common source of confusion. The regulations allow you to seek an “informal conference” with MSHA and specify that you have 10 days from “receipt of notice by MSHA” in which to request the conference. In other words, using the example above, if the inspector tells you about a citation June 2, gives you the citation June 5, and notifies you of your right to a conference at the closeout on June 8, you have until June 18 to request the conference. Unlike the 30-day notice of contest provision, this 10-day limit is not jurisdictional. In other words, if you wait 11 or 25 or 37 days to request the conference, MSHA may still be willing to meet with you. It is completely up to MSHA because the regulations also say that MSHA does not have to grant your request for a conference even if it is made within the 10 days allowed in the regulations.
Following are some important things to remember:
- The 30 days to file a Notice of Contest is not affected by whether you have a conference or not. It runs from the date you received the citation regardless of when (or if) an informal conference takes place.
- The date on the citation is always the date on which the violation occurred. That may be days or even weeks before you receive the paper copy. For that reason, it is advisable to write the receipt date on the citation, or date stamp it when it is received.
- The date of the closeout conference or the informal conference is irrelevant to the calculation of the 30-day time deadline. An awful lot of people have lost their rights because they started counting from the wrong day.
I can’t tell you how many people have called us over the years with legitimate problems and challenges to MSHA citations only to find out that they have waited a couple of days too long. If that happens, however, don’t give up all hope. You have another chance to contest the entire citation after the penalty is assessed. That opportunity only lasts 30 days as well, but counting the days for that one is another column. Watch this space for the rest of the story, it should be out in — oh, I don’t know — about 30 days.
Mark Savit is a partner in the Washington, D.C., law firm of Patton Boggs, LLC.