May 2002

Guarding Against Bogus Discrimination Claims

By Adele L. Abrams, Esq., CMSP

The Mine Safety and Health Administration (MSHA) has released its most-cited standards data for calendar year 2001. Overall, the top 10 most frequently cited metal/nonmetal standards were: 56/57.14107A (guarding moving machine parts); 56/57.14132A (horns and backup alarms); 56/57.14100B (equipment defects affecting safety); 56/57.11001 (safe access); 56/57.14112B (construction/ maintenance of guards); 56/57.14101A (brakes for mobile equipment); 56/57.12004 (electrical conductors); 56/57.12032 (electrical inspection and cover plates); 56/57.12008 (insulation and fittings for power wires and cables); and 56/57.9300A (berms).
Tables 1 and 2 indicate the “top 20” cited standards for sand/gravel operations and surface stone mines.

Table 1. Sand & Gravel Citations—CY2001
Rank	Number of Violations	Percent	Standard/Title
1	4,043	12.48	56.14107/guarding
2	1,650	6.72	56.14132/horns and backup alarms
3	1,244	5.07	56.14100B/mobile equipment safety defects
4	704	2.87	56.14101A2/parking brakes
5	679	2.77	56.9300A/berms or guardrails
6	661	2.69	56.12028/testing grounding systems
7	648	2.64	56.11001/safe access
8	632	2.58	56.14112B/guard construction
9	596	2.43	56.12004/electrical conductors
10	561	2.29	56.12008/insulation and fittings for power wires and cables
11	503	2.05	56.11002/handrails and toeboards
12	479	1.95	56.12032/inspection and cover plates
13	402	1.64	56.18010/first aid
14	383	1.56	56.4101/warning signs
15	319	1.30	62.120/noise action levels
16	317	1.29	56.18002B/workplace examination records
17	312	1.27	56.12030/correction of dangerous electrical conditions
18	300	1.22	56.1000/notification of commencement of operations and closing of mines
19	280	1.14	50.30A/preparation and submission of 7000-1 Mine Accident, injury and illness reports
20	262	1.07	56.18002A/examination of working places

Table 2. surface stone citations—CY2001
Rank	Number of Violations	Percent	Standard/Title
1	2,857	14.38	56.14107A/guarding
2	1,364	6.86	56.14132A/horns and backup alarms
3	1,316	6.62	56.14100B/mobile equipment safety defects
4	826	4.16	56.11001/safe access
5	561	2.82	56.14101A2/parking brakes
6	520	2.62	56.14112B/guard construction
7	487	2.45	56.12008/insulation and fittings for power wires and cables
8	471	2.37	56.9300A/berms or guardrails
9	461	2.32	56.12032/inspection and cover plates
10	406	2.04	56.12004/electrical conductors
11	378	1.90	56.11002/handrails and toeboards
12	356	1.79	56.12030/correction of dangerous conditions
13	355	1.79	56.12028/testing grounding systems
14	334	1.68	56.20003A/housekeeping
15	283	1.42	56.4101/warning signs
16	250	1.26	62.130A/noise action level
17	229	1.15	62.130A/noise permissible exposure level
18	191	0.96	56.12025/grounding circuit enclosures
19	185	0.93	56.18002B/workplace safety records
20	184	0.93	56.16005/securing gas cylinders

A Freedom of Information Act request to MSHA revealed that in calendar year 2001, MSHA brought Section 110(c) actions against mine agents and supervisors in 101 instances. MSHA issued 219 “unwarrantable failure” citations under Section 104(d)(1) of the Mine Act in the metal/nonmetal sector. The most-often cited standards for Section 104(d)(1)
citations were 56.14107A (guards), 56.11001 (safe access) and 56.15005 (safety belts and lines). Two unwarrantable failure citations were issued for violations of Part 46 training.
MSHA issued 242 “unwarrantable failure” orders under Section 104(d)(1) last year. The most frequently cited standard was 56.14112B (construction/maintenance of guards), followed by 56.14100 (equipment safety defects) and 56.14132 (horns and backup alarms). MSHA issued 91 Section 104(d)(2) orders in 2001, with equipment guards again topping the list.
Imminent danger orders are issued under Section 107(a) of the Mine Act and are often specially assessed. MSHA issued 373 of these orders to metal/nonmetal mines during 2001, with §56.15005 topping the list (146 orders), followed by §56.14107 (53 orders).
MSHA issued a total of 768 citations under various provisions of 30 CFR Part 46 during CY 2001, and 113 new citations were issued during January and February 2002—most of which allege violations of the “new miner training” requirements. Nearly $138,000 in civil penalties has been assessed against mine operators for Part 46 violations to date.

MSHA’s Plan to Improve Health and Safety

Dave Lauriski talks about how the agency can partner with industry to achieve success

By Therese Dunphy

Editor’s Note: AggMan met with Dave Lauriski, assistant secretary of Labor for mine safety and health, in Las Vegas where he shared his thoughts on what it will take to accomplish another major reduction in accidents and fatalities.

AggMan: You’ve talked in a number of forums about a small-mine office. Where does that initiative stand and what are your goals for it?

Lauriski: We’re currently in the development phase. We’re trying to set this up in relation to a lot of the information we received at the stakeholder meetings. I’ve also had an opportunity to visit some of the small mines in different parts of the country and look at their unique circumstances. Some are better equipped than others, but I think we have an opportunity to address and improve health and safety of the worker.
We looked at the accident rates from the year 2000. Small mines, five or fewer employees, have a fatality rating nearly four times higher than mines with 20 or more employees. So there’s a real opportunity where we can assist and bring those rates down. We can do that in a number of ways. Obviously compliance assistance is part of it—we still have to do our job. But maybe where small mines lack the resources to do certain things, we can direct them to the right resource or, in some cases, we can help them with some of the things they need to do.
It’s also looking, for example, at the nature of the current regulations to determine whether or not those regulations truly have an application in small operations versus something different that provides the same level of protection, but maybe in a different way.
Looking at small mine issues, directing small mine operators to resources where they can get help, working with them from an electronic perspective—there are a lot of things that can go into this to make it work.
We have a conceptual plan, but we don’t have a manager yet. We’re currently working on that aspect of it. We have a target of no later than October, but we want the manager to have a say in how it is set up.

AggMan: It seems to me that MSHA has an opportunity to serve in a true advisory capacity to small mines, but producers are concerned about being cited if they ask for assistance. Can producers come to MSHA in a context other than an inspection and ask for your help with a specific concern?

Lauriski: I would hope that any operator could call us and ask that question, but there is an understanding here: One of the things that is very difficult is that, in a lot of fashions, we’re unlike any other enforcement agency. We don’t have discretion. If we see a violation, there’s an obligation on the part of enforcement personnel to write it. But, if somebody calls us up and says “I’ve got this situation and I’m not really sure what to do with it,” we ought to be able to work with that individual without fear of retribution. I think we have the ability to do that, but what we can’t become is their safety department or their compliance department. We can help them with certain issues, but we can’t have them calling us every day; that’s not going to work.

AggMan: Can you give me an example of a case where the call would be appropriate and the agency would be able to help?

Lauriski: One example may be before you expand the pit. You may be concerned about the angle of repose on the highwall or what you have to do for a drag-back situation. You could call us up and ask us that question, and we ought to be able to get you an answer.
One of the other things we’re talking about is equipping all of our personnel with compliance assistance packages so that when the inspector visits an operation he can give them a package of information that, hopefully, will help them understand how to comply. We can do that at all levels, but particularly at the small mines.

AggMan: Do you think that the recent spike in fatalities is an anomaly?

Lauriski: I don’t think we have enough data, but out of the 17 recent fatalities, we are seeing some disturbing trends. One is that we’re seeing a lot of powered haulage, but not for all the same reasons. There are people who question the fact that we pulled the rule on surface haulage. Well, the surface haulage rule wouldn’t have addressed most of the kind of accidents we’re having.
We’re seeing a trend of behavior that concerns me. We talk about the basics of safety that we’ve talked about for many, many years. We talk about locking and tagging equipment before you work on it. That’s something that all industries preach. We talk about climbing with a safety harness in elevated conditions, yet we still don’t do it. We talk about blocking the front of a piece of mobile equipment and not relying on our hope that we set the parking break. It’s those kinds of things that, from a pattern perspective, really concern me.
We’re talking about the human factor in many of these cases. One of the things we have to do as an agency, that we have not done, is talk about the human factor. It’s okay to talk about it. This is not a game of finding fault; it’s about finding the facts that can help prevent accidents from occurring. We have to cross that threshold as an agency. We often looked at the faults of people. It’s not a blame game, that’s the best way I can say it. It’s an understanding game—knowing why people do what they do. We have an opportunity to better understand why things happen. What leads you to do things that let (incidents) happen or why do you do things the right way? If we can understand that, we could take it to every mine in the country.
It’s what I call safety as a value. That’s what will get us our success—when every person commits to making safety a value. When you make safety a value in your life, you’re going to go home at the end of the day the way you went in to work, and that’s what is important. I’ve asked all of our stakeholders to carry that message. It’s just like when you drive a car. If your first reaction is to put a seatbelt on and you do that automatically, you’ve made safety a value in your life. That’s the idea we have to get across.

AggMan: With budgets as they are, is there any potential for opening up the Mine Act to eliminate mandatory inspections for producers who have good safety records?

Lauriski: We haven’t had a lot of discussions about that subject. There are things that we can do and are doing now that give us the flexibility to recognize the performers and recognize the performance. That let’s us focus our resources where we can make the difference, where we really truly get a return on investment. I think the Mine Act gives us that flexibility. But, this is not without challenge. I understand that.
The Mine Act mandates three very specific things: enforcement, education and training, and technical support. They talk about it in the sense that all of those things have to be part of the equation if you want to improve performance.
From the inception of the Mine Act through the mid-1990s, it (enforcement) made a tremendous difference. Where would we be today if it weren’t there? I don’t know. But it was done with enforcement being at the top of the ladder, the core element of this business. The performance over the last eight or nine years indicates that something is no longer working. The easy answer is to say that enforcement has reached a point where it’s still effective at maintaining where you are, but, in and of itself, it is not the answer to taking it to the next level. Now, maybe it’s time to bring in these other components on an equal basis.
I like to use the triangle. When you lose any one of those components (enforcement, training and education, and technical support), the triangle weakens. Start to drop away education and training, and pretty soon, the triangle starts to collapse. All you have left is the base.
The base of this always has to be enforcement; there’s no doubt about it in my mind. If you lose enforcement, everything falls apart. Enforcement still has to be the base of our efforts, but not at a higher level than the other two components. There has to be a good healthy balance. I think that, given the Mine Act’s mandate to do that, we have flexibility to the things we talked about doing without changing the Mine Act’s 4s and 2s. We can still do our 4s and 2s. I believe that’s the logical thing for us to approach.
It’s a real culture change, not just for this agency, but for this industry. It helps you foster a culture of health and safety excellence internally and externally, internally to the agency and externally to our stakeholders.
Once we achieve that, I think we’ve set the standard. We institutionalize the process and that will help us drop the trend.

AggMan: How are you identifying potential MSHA employees?

Lauriski: We do a couple of things depending on the job grade. One of the things I want to make sure we do is to staff the agency with the best qualified people we have available—people who want to work for the agency or people inside the agency. Having worked with the agency for 30 years, I’ve always had a great deal of respect for the agency as an institution. I’ve always had a great deal of respect for people that I have worked with. I was asked a question a couple of months ago: “What was the one thing, since you’ve been there, that really stands out?” It was an easy answer—the people. I knew there were quality people, but what I didn’t realize was just how many we had and what a resource we had at our fingertips.
One of the things we have to look at is succession planning. We’re an agency that has an aging work force just like the mining community. We all probably started together back in the late 1960s and early 1970s, so we have to look at how we’re going to succeed each other. Part of that is knowing that we may not be adequately staffed because we’re not bringing younger people into the agency. We have to look outside the agency, so one of the things I do is to look at all sources. At a certain level of job, we’ll post it on the website to encourage applications from all persons, not just those from inside the agency. That gives us a good appreciation for what opportunities we present.
AggMan: Some producers analyze recent health and safety statistics and tailor their Part 46 training to address the underlying causes. Has MSHA performed this type of analysis?

Lauriski: We’re not where we need to be. We’ve heard from our stakeholders that we need to be able to profile a little better than we can today. We can profile very well. We can profile a mine operation. Our enforcement personnel have at their fingertips the ability to do that, but they have to go through two or three components to gather all the information. We want to develop a profile where at the push of a button it’s done. We ought to be able to pull up a mine’s compliance history and their accident history. We can do that, but it’s not a very easy project. We ought to be able to do it at the beginning of an inspection. Our enforcement personnel ought to be able to say “The last time we were here, there were a lot of problems on housekeeping…and a lot of problems with trips and falls. Let’s go focus our attention on that for the first part of the inspection. Let’s see if you’ve still got a problem and, if so, let’s figure out how to remedy that problem.” They ought to be able to focus their attention and efforts to truly get a return on investment. That would be the focused part of the inspection. Now, we can do the rest of it.
When you look at our system, we can identify operations that are having problems, and we do that quite frequently, as well as pulling up operations with great performance. We should be very proactive in getting to those operations that are having difficult times and saying, “You’ve got a problem here. We can help you overcome it, but the key is whether or not you want our help.”
We have some operations that we visited last year. They’ve asked for our help, and we’ve made a difference. That’s the kind of approach we hope to continue. If people are willing to partner with us without barriers, we truly can help them out. We’re not always going to agree, and we’re probably going to have difficulties. It doesn’t matter if you’re MSHA or if you’re running an aggregates company, you’re going to have those problems, but if you’re willing to take that step, we can help.

FMSHRC

Federal Mine Safety and Health Review Commission

By Adele L. Abrams

“Immediate” Reporting Requirement Litigated
A pair of cases in February 2002 explored what is required by MSHA’s requirement in 30 CFR §50.10 that accidents be “immediately” reported if they have “a reasonable potential to cause death.” In both instances, the mine operator contacted MSHA by telephone, but also disturbed the accident scene before agency representatives could conduct an accident investigation, allegedly in violation of 30 CFR §50.12. These requirements are often misunderstood by mine operators, especially in the heat of the moment following a catastrophic event. Unfortunately, if MSHA classifies the violations as “high” negligence, the citations are specially assessed and can result in civil penalties of $5,000 per violation or higher.
In the Chino Mines Co. case (ALJ Cetti, Feb. 20, 2002), an electrical explosion on June 7, 1997, injured three employees and resulted in the death of a mine supervisor the following day. Approximately six hours after the accident, the mine operator called the MSHA field office and left a voicemail message, but did not call the district office or agency headquarters. The cited standard states that if the operator cannot contact the appropriate local office, it shall immediately call the 800 number at MSHA headquarters in Arlington, Va.
Because the supervisor died of his injuries 19 hours after the accident, the judge said the requirement should have been met. The mine operator said that its agents were not aware of the extent of the man’s injuries because a doctor said the victim had a “chance to survive” and because the supervisor was talking coherently when transported to the medical center. The ALJ held that a reasonable person with basic first-aid training, upon learning that an employee had serious burns over 60 to 70 percent of his body, should know of the gravity of his injuries, thereby triggering the requirement.
The mine operator was also charged with failure to preserve the accident site in that the circuit breaker that exploded was removed and replaced despite MSHA directions not to change anything at the accident scene. Standard 50.12 states that, absent permission from an MSHA district or subdistrict official, no operator may alter an accident site or related area until completion of all investigations, except to the extent necessary to rescue or recover an individual, prevent or eliminate an imminent danger, or prevent destruction of mining equipment. The judge noted that the mine operator had been concerned that an environmental disaster could occur if power were not restored, because the plant’s holding dam might overflow its acidic bleaching fluid in violation of the mine’s water discharge permit.
Both of these citations were categorized as “high negligence” and non-significant and substantial, and MSHA sought a combined civil penalty of $10,000. Judge Cetti found that mitigating circumstances warranted modification of negligent to “moderate” and reduction in the two proposed civil penalties to $1,800. In addition, the penalty for the electrical citation associated with the accident itself, which alleged a moderate negligence, S&S violation of 30 CFR §56.12002, was reduced from $50,000 to $27,000 although the negligence and gravity findings were not altered.
A second decision demonstrates that the interpretation of the immediate notification requirement is highly fact-specific. A ruling was published in Cougar Coal Co., Inc. (ALJ Weisberger, Feb. 14, 2002), where the ALJ vacated citations under §50.10 and §50.12 in a non-fatal accident case. In that matter, involving another electrocution incident, a miner contacted a live wire, then fell 22 ft., hit his head on the edge of a power center and suffered a fractured vertebra. The victim initially had no pulse and received CPR at the scene.
In his analysis, Judge Weisberger observed that, to prove a violation, MSHA must demonstrate that there was an “accident” as defined in 30 CFR §50.2(h)(2) and that the term “injury” refers to the damages suffered as a result of an act, rather than the act itself. Therefore, the nature and extent of the victim’s injuries must be evaluated as to their “reasonable potential to cause death.” Although MSHA argued at trial that it was “common knowledge” that injuries such as an electric shock, a fall from many feet and fractured vertebrae entailed such reasonable potential for death, the agency did not adduce any medical evidence or site recognized medical
authorities to support its conclusion. Absent such medical evidence, the judge held that MSHA failed to support its conclusion concerning the gravity of the injuries. Because he concluded that the mine operator could not reasonably conclude that the employee’s injuries had such potential, the judge held that MSHA did not establish that an “accident” occurred within the meaning of §50.10, and vacated both this citation and the citation alleging failure to preserve the accident scene under §50.12.
On March 15, the Commission directed review of ALJ Weisberger’s findings in this case, despite the parties’ failure to appeal the decision.

Cursing and Threats Not Valid Basis For Discharge
A recent decision on remand in MSHA o/b/o Leonard M. Bernardyn v. Reading Anthracite Co. (ALJ Weisberger, Feb. 1, 2002) may make it more difficult to discharge problem employees who have also voiced safety complaints. In his original ruling, ALJ Weisberger held that, although a fired miner had complained about being asked to drive fast on slippery mine roads on the day of his termination, he was properly discharged because he cursed for eight to 10 minutes continuously over the mine’s CB system, and also made a threatening reference to his supervisor, saying he would “get the little f_ _ _ _ r.” The mine operator had asserted that Bernardyn was fired for profanity and threatening his supervisor, and the judge had agreed that this established an affirmative defense.
On appeal, the Commission directed ALJ Weisberger to apply the Commission precedent articulated in Cooley v. Iowa Silica Co., 6 FMSHRC 516 (1984) and Hicks v. Cobra Mining Inc., 13 FMSHRC 523 (1991). Those cases say the court must examine “whether the operator had prior difficulties with the complainant’s profanity, whether the operator had a policy prohibiting swearing and how the operator treated other miners who had cursed.”
Using these criteria, the Commission examined the record and found it devoid of any evidence of prior difficulties, a written policy or similar treatment of other miners who cursed. Although ALJ Weisberger clearly believed that the duration and extent of the cursing was a significant distinguishing factor when compared with other miners’ cursing, the Commission found substantial evidence that did not support the judge’s finding. The Commission also concluded that the record did not support the ALJ’s holding that Bernardyn had threatened his supervisor.
On remand, ALJ Weisberger wrote that the Commission’s findings had become “the law of the case” and he was “constrained to conclude” that Bernardyn was discharged in violation of Section 105(c) of the Mine Act. The judge ordered the parties to discuss settlement on the elements of relief requested, including back pay and interest, and the civil penalty sought by MSHA against the mine operator.

Discrimination Claim Upheld Against S&G Operator
A sand and gravel operator was found to have discharged an employee who made repeated complaints about safety concerns, in violation of Section 105(c) of the Mine Act. In Mike Fletcher v. Morrill Asphalt Paving (ALJ Manning, Feb. 22, 2002), the fired miner was the only employee who voiced safety complaints. Fletcher worked at a portable crusher in Washington and made repeated complaints about missing railings and drinking by co-workers. The referenced conditions were promptly corrected, but no action was taken against the other employees. When a purported reduction in force (RIF) occurred, Fletcher was discharged while coworkers, who had less seniority and skills, were retained.
The terminated miner initially filed a complaint with the state under its Industrial Safety and Health Act (Washington is an OSHA “state plan state”), and the testimony given to WISHA by corporate agents differed from that presented by them at the MSHA hearing with respect to the justification for selecting Fletcher for the RIF. Evidence also was presented at the MSHA hearing that the supervisor had a negative attitude toward safety, calling the safety manager “the Safety D_ _ k.”
ALJ Manning first found that Fletcher had engaged in protected activity when he complained about safety conditions from July 1999 until his RIF in February 2000. The complaints about co-workers’ alcohol use were safety-related because the miner feared that they could injure him as they operated heavy equipment. The judge analyzed the “circumstantial indicia” to discern discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus toward the protected activity; (3) coincidence in time between the protected activity and the adverse action; and (4) disparate treatment of the complainant. He found that all of the indicia were satisfied and established that the selection of Fletcher for the layoff was motivated at least in part by his safety activities. Moreover, his selection did not make any sense from a business context, the judge observed.
Although motivation is subjective, the evidence in the record supported a finding that the company was motivated by the miner’s safety work. Because company representatives articulated differing reasons for the selection during the WISHA and MSHA hearings, ALJ Manning found the witnesses less credible than Fletcher and held that the mine operator failed to rebut the employee’s prima facie case. He directed the parties to discuss agreement on the amount of back pay, medical benefits and retirement pay to be awarded. Reinstatement was not an option because the crusher was shut down in November 2000 and all employees were laid off.

Tide Creek Rock Held Within MSHA Jurisdiction
For the fourth time, Tide Creek Rock has challenged MSHA jurisdiction over the small family-owned crushed stone operation…and has lost. The latest case, Tide Creek Rock Inc. (ALJ Barbour, Feb. 21, 2002), involved 24 citations with total proposed civil penalties of $2,492.
Although the facility has been inspected by MSHA for several years, and its prior citations have been litigated before the Commission, the mine operator continued to claim it was not subject to the Mine Act. Section 803 of the Mine Act provides that “each coal or other mine, the products of which enter commerce, or the operations or products of which affect commerce” and each “operator of such a mine, and every miner in such a mine shall be subject to the provisions” of the Act. Chief Judge Barbour found that the record supported finding that Tide Creek’s products enter commerce and affect commerce. The judge held that an operator whose product is used in construction of public roads plays a part in interstate transportation and, thus, in interstate commerce. Moreover, the company owned loaders manufactured in a different state, another indicia of interstate commerce. Finally, interstate commerce can be affected by small-scale operations because of the impact on pricing and demand. Therefore, the mine’s jurisdictional challenge failed once more.
Judge Barbour sustained 23 of the citations, but significantly reduced the total penalties to $980 because of the impact on the operator’s ability to remain in business.

MSHA’s Late Filing of Penalty May Be Basis For Dismissal
The Commission has held that MSHA’s late filing of a petition for assessment of proposed penalty is not a basis for granting interlocutory review prior to a merits hearing, but it ruled that the elapsed period between the issuance of the citation and the penalty petition should be considered when determining whether the mine operator’s rights have been prejudiced. The mine operator had argued that the issue of the timeliness of the Secretary’s penalty petition was a controlling issue that should be resolved before consideration of whether the citations were meritorious.
In Cactus Canyon Quarries of Texas, Inc. (March 28, 2002), the Commission noted that the Secretary’s petition was merely 15 days late, and that the 45-day deadline set forth in Commission Rule 28(a) is not a statute of limitations. The Commission has adopted a two-part test with respect to such late-filed petitions, which states that tardy petitions will be permitted where (1) the Secretary demonstrates “adequate cause” for the delay and (2) the operator fails to demonstrate prejudice. Rhone-Poulenc, 15 FMSHRC 2089 (Commission 1993), aff’d, 57 F.3d 982 (10th Cir. 1995). Cases have been dismissed in the past, where the operator sufficiently demonstrated that it was prejudiced in the preparation of its case by the stale penalty proposal.
In his initial ruling on Cactus Canyon’s motion (Cactus Canyon I, ALJ Schroeder, Feb. 1, 2002) the judge failed to consider that, in addition to missing the petition deadline by 15 days, MSHA waited 364 days between issuing the citation and order and making the initial penalty
assessment. Section 815(a) of the Mine Act directs the Secretary of Labor to notify the operator “within a reasonable time” after the termination of the inspection or investigation of the civil penalty proposed to be assessed.
Although it affirmed the decision denying interlocutory review, the Commission stressed that MSHA’s 364-day delay compounds the delay in the assessment of the penalty petition and that the judge’s failure to consider this constituted error. Accordingly, the Commission remanded the case for consideration of all of the Secretary’s delays in proposing and assessing a penalty when reaching a determination of prejudice concerning dismissal of the action.

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.

Rock Law

Picking Your Fight—When to Contest a Citation

By Brian Hendrix

If a Mine Safety and Health Adminis-tration (MSHA) inspector showed up at your operation for an inspection and told you, before he even started the inspection, that he was going to issue a half-dozen citations, what would you do? How would you respond? As outrageous as it may sound, this is a question that at least one mine manager in the aggregate industry has recently had to answer. He had always had a good relationship with MSHA and wisely wanted to keep it that way. He runs a safe shop, makes safety and health a priority. Though MSHA issued a handful of minor citations after most inspections, he simply abated the alleged violations and paid the fines.
And that was the problem. The inspector knew he could issue a half dozen citations every time he set foot on the property and never be seriously questioned about any of them. He knew he was dealing with a mine operator that did not contest citations. If he had been dealing with an operator with a reputation for contesting bogus citations, he almost certainly would have been more careful about the paper he issued.
The operator in this real life example simply did not realize the value of contesting citations. Of course, few mine operators relish the thought of picking a fight with MSHA. Contests consume resources, and wise operators in this competitive industry are rightly very wary of dedicating the time and attention of their people to an enforcement matter. A non-Significant and Substantial (S&S), low to moderate negligence 104(a) citation will cost you a little over $60. So, why bother spending time and money on a fight over a $60 fine?
If the fine is the only cost of accepting the citation as written, then you really wouldn’t bother, and most of the time that makes perfect sense. That is the case for the vast majority of all citations MSHA issues. The critical fact here is that, for some citations, the fine is the least of your concerns.
Can you identify those citations? Put a little differently, can you pick your fight by weighing the costs and benefits of contesting each citation that you receive? Picking your fight by conducting an accurate cost-benefit analysis is relatively simple if you think in terms of the following questions.
1. Does the citation have merit? First, take a hard, honest look at the language of the regulation and compare it to the facts. Then, ask yourself whether MSHA was right to have cited you for the condition or practice. Do you believe that MSHA is just wrong or mistaken? Do you believe that you violated the regulation?
Second, ask yourself whether MSHA alleged the appropriate level of negligence? There will be more on negligence below, but for now remember that if there are any mitigating circumstances, MSHA should not characterize the violation as highly negligent. Moderate negligence is justified where there are some mitigating circumstances, and low negligence is appropriate where there are considerable mitigating circumstances.
Finally, if the violation is characterized as S&S, you need to ask whether there is a reasonable likelihood that the hazard contributed to by the violation will result in a reasonably serious injury. If not, the citation should not be classified as S&S.
Answering these questions for yourself certainly does not require a law degree. The inspector who issued the citations answered them, and he or she isn’t a lawyer. Aim for a common sense appraisal of the facts and the language of the cited standard and your answers will usually be spot on.
2. How does this citation affect my civil and/or criminal liability? The buzz words here are reckless disregard, high negligence, unwarrantable failure and S&S. Only those citations classified as S&S are counted toward Section 104(e) Pattern of Violation orders, and the S&S designation automatically results in a higher penalty assessment. More seriously, you can expect a citation alleging a highly negligent or reckless violation and any unwarrantable failure order to trigger a special investigation. The purpose of a special investigation is to determine whether individual civil penalties should be assessed under Section 110(c). MSHA will also use the results of its special investigation (and any evidence it collects during the investigation) to determine whether the matter should be referred for criminal prosecution. With an unwarrantable failure order, you can also find yourself on an unwarrantable failure chain, and unwarrantable failure orders often form the basis for mine closure orders. How much will it cost you if your operation is closed down by MSHA for just a day? How do you think a special investigation and the threat of individual civil penalties will effect the productivity and morale of your people? The stakes in a situation like that are high—high enough to call your attorney for his or her take on the situation.
It is also easy to overlook the potential impact that these types of citations and orders can have in a civil suit brought against you. Civil suits are common where there has been a serious accident, and, in most instances, the workers’ compensation bar will shield you from civil liability.
That said, a plaintiff’s attorney is a lot more likely to take a shot at clearing that bar if he or she knows (and a good plaintiff’s attorney will find out) that you have already admitted to an unwarrantable failure to comply with a safety standard. In fact, in some states, a plaintiff can avoid the bar by establishing that the employer was grossly negligent. In other cases, the bar may not apply to you at all. For example, if an independent contractor’s employee is injured on your property, his or her employer can use the bar to avoid liability, but in most states you won’t have that option.
3. Can I abate the alleged violation? During an inspection, an inspector cites you for the guarding on a conveyor tail pulley feeding one of your crushers. To abate the violation, you’ll have to add another guard. Adding that guard will take your welder an hour to install and, beyond the welder’s time, won’t cost you much more. The tail pulley is already well guarded, it’s out of the way and rarely do any of your people work anywhere near it. You figure the new guard isn’t necessary and certainly isn’t required by MSHA’s guarding standard, but it’s just a small guard that’s fairly cheap to install, so why argue over it? Before you answer that question, ask yourself how many tail pulleys just like the one MSHA cited are on your property? How much is it going to cost to add new guards to each of those? How often will you have to remove the old guards and the new guards to work on the tail pulley, and how much additional time will be added to that task? Is the new guard going to collect more muck than the old, safe and compliant guards and require even more time to clean and maintain? Did the conveyor come from the manufacturer that way? If so, will adding guards void a warranty or service agreement? The key here is to think ahead and ask yourself what the broader impacts and costs of abatement are. Remember that every violation you admit to must be abated, and the method of abatement is usually up to MSHA.
4. How will contesting this citation affect my relationship with MSHA? A smart mine operator knows that it is critical to maintain a positive, professional working relationship with the MSHA inspectors who inspect their operations time and again over the years. If you contest every citation MSHA issues to you without regard to its merits, you can be certain that your relationship with MSHA will suffer. Similarly, if you roll over every time MSHA issues a citation and opt not to contest any of them, you may find yourself dealing with an inspector who tells you he’s going to issue a half dozen citations before he even starts an inspection.
Contesting a citation that you honestly disagree with should not cause any harm at all to that relationship. The vast majority of MSHA inspectors recognize that reasonable people often disagree about the facts and the meaning of often ambiguous standards and regulations. One thing is certain though—if you establish yourself as an operator who contests the citations you have an honest disagreement with and accepts the citations that were rightly issued, you will end up receiving fewer citations in the first place.
Recently, MSHA issued over 30 citations to one of our clients during a routine inspection. Of these, several were unwarrantable failures, over a third were S&S and several others alleged highly negligent violations. As expected, MSHA returned for a special investigation into the unwarrantable failures. Our client, after answering the questions above for himself, assessed his situation and knew that he had to contest the citations. He thought MSHA was wrong to issue the unwarrantable failures and was mistaken in classifying many of the violations as highly negligent and S&S. He also felt that there simply was no cause for a special investigation. It turns out that he was right and had picked the right fight. We assisted our client with the contests, and MSHA ultimately dropped the unwarrantable failure allegations, vacated a full third of the citations, modified another third from S&S to non-S&S and lowered the negligence level on many others.
As an industry, we strive to eliminate accidents and injuries, and we work hard to comply with MSHA’s standards and regulations. While there may be operators out there who have gone years without a single citation, they are few and far between. For the vast majority of operators, citations are a fact of life and a cost of doing business. Understanding the value of contesting certain citations, picking the right ones to fight, will go a long way toward minimizing that cost.

Brian Hendrix is an associate in the Washington, D.C. office of Patton Boggs LLP. The law firm’s website is located at www.pattonboggs.com.