June 2002
You Can’t Always Say What You Want (To)
When it comes to communications with inspectors, don’t put your foot in your mouth
By Mark Savit
What do lawyers do? I mean what do they really do? After all, we don’t mine anything. We don’t crush anything, except occasionally the hopes and dreams of a client (but that’s another story). We don’t haul anything. Sometimes we read, sometimes we talk, and sometimes we write. But, at its core, all we really do is explain a set of facts that has already occurred. We try to explain a set of facts in such a way as to minimize the liability it might entail.
At the last stages of the process, the kinds of things that we need to talk about involve specialized knowledge of statutes, regulations, precedents and court procedures. But at the initial stages of a citation contest (the moments leading up to and following the issuance of the citation), no specialized knowledge is required except familiarity with the facts that led to the citation and a knowledge of the regulation.
Let’s examine this for a minute. First, there should be no one, including the inspector, that has more knowledge about the facts of your operation than you (and your employees) do. Second, you should have a working knowledge of the regulations in order to try to stay in compliance. In other words, you already have the basic tools necessary to be your own lawyer at the initial stage of the proceeding. The key to a more successful defense is how to make the knowledge you have work for you. Here are a few simple pointers:
1. Be prepared.
This is very, very simple. Always have a member of management accompany the inspector. If he goes alone, you will never be able to question his version of the facts. Always bring a copy of the regulations with you. No one can remember all of the regulations by heart, not even the inspector. Without it, you will be unable to make a credible argument that the regulation doesn’t say what the inspector is saying.
2. Carpe momentum.
You must seize the moment in order to make your case most effective, and that moment you must try to seize is right before the inspector decides to issue the citation. I know that many inspectors don’t issue any citations until the end of the day, the next morning or even the closeout. We strongly recommend asking the inspector to let you know right away if he thinks something is a violation. That way, you can not only decide how you want to handle it in a timely way, but you can also correct a condition that may well be unsafe.
3. Miners are from Earth, MSHA inspectors are from Mars.
By this, I don’t mean that the inspectors are aliens. In fact, I consider myself to be friends with a number of them. By this, I mean that what is important to you (costs, absenteeism, production, sales) is meaningless to the inspector. You will not
have any success in a discussion with the inspector unless you concentrate on the facts at issue and the regulation that has been allegedly violated.
4. Before you shoot yourself in the foot, take it out of your mouth first.
We all make mistakes. We say things we don’t mean, and we accidentally make admissions. Avoid statements like, “Well, we did what you said, but…” or “I knew something like this would happen” or, most importantly, “I told them weeks ago to fix this.” The final statement will not help you. In fact, it is an admission that you knew of the violation, but allowed it to exist anyway. That can be considered a willful violation and result in civil penalties against individual supervisors or criminal penalties against you, your supervisors or your company.
5. Document, document, document.
Always be prepared to measure, sketch, photograph or somehow record the conditions that the inspector is basing the citation on. This is extremely important when you think that the facts are not as the inspector is describing them. Re-member, this could be crucial to a successful defense. If you wait any significant time before you measure or take pictures, the condition could already be corrected and your chance to defend yourself will be lost. On the other hand, without documentation, it will be your word against the inspector’s and, believe me, in a swearing contest between you and the inspector, the judge will generally believe the inspector.
If I said that these five tips would make you a lawyer, I’d probably be shot by the bar association. The fact is, they won’t. But they will help you organize your thoughts and arguments more effectively when you are in the midst of an inspection. One last hint…leave the three piece suit at home.
Mark Savit is a partner in the Washington, D.C., law firm of Patton Boggs, LLC.
Federal Mine Safety and Health Review Commission
By Adele L. Abrams, Esq. CMSP
OSHA “Access” Compliance Does Not Satisfy MSHA Requirements
An ALJ has analyzed MSHA’s “safe access” requirements under 30 C.F.R. §56.11001, and held that compliance with OSHA’s analogous rule is not a basis for vacating an MSHA citation. In Western Industrial, Inc. (ALJ Weisberger, March 1, 2002), the company was a subcontractor for a construction firm installing equipment at a cement plant in Colorado. An MSHA inspector issued an “unwarrantable failure” citation alleging that access from a ladder to the work platform violated the standard, which requires that a “safe means of access shall be provided and maintained to all working places.” The gap between the ladder and the platform was 14 in., which satisfied the comparable OSHA construction standard, 29 C.F.R. §1926.451(e)(8).
ALJ Weisberger explained that such performance-oriented standards are enforced using the “reasonably prudent person” test, and also analyzing factors including the text of the regulation, the consistency of the Secretary’s enforcement, and whether MSHA has published notices regarding its interpretation of the standard in question. Additionally, the Commission considers the inspector’s testimony and the operator’s witnesses in determining whether certain practices affect safety.
Here, the judge found the MSHA inspector credible when he testified that the access at issue was dangerous, because the inspector climbs scaffolds frequently in his work. Although the distance from the ladder to the platform was 14 in., the ALJ found that a worker would have to reach out 15 in. horizontally in order to place his foot on the platform, which shifts the person’s weight and subjects him to a possible 6 ft. fall. In addition, the worker would have to squeeze between the platform railings to reach the platform. He rejected Western’s witness testimony because the industrial safety director did not provide a basis for his opinion that the access was safe. In addition, he rejected the argument that MSHA had failed to cite this condition during prior inspections, because the mine operator could not establish that this inspector had observed the specific cited conditions.
However, the ALJ did reject the “unwarrantable failure” findings, noting that the contractor’s negligence was mitigated by the fact that two persons who built the platform told him it was safe, and the company policy adhered to OSHA guidelines. The company was in “substantial compliance” with the OSHA regulation, the ALJ noted.
On April 9, 2002, the Commission granted Western Industrial Inc.’s Petition for Review, which is limited to the issue of whether the ALJ improperly disregarded the testimony of Western’s witnesses concerning access practices and prior inspections, and whether the ALJ improperly found the violation to be S&S. The deletion of the “unwarrantable failure” allegation has not been appealed by MSHA.
ALJ Vacates Citations for Defects on Equipment Not “In Service”
One of the more controversial MSHA inspection practices in recent years has been the issuance of citations for equipment that is not in service at the time of the inspection, but which is theoretically “available” for use because it is not physically tagged out. Commonly, inspectors refuse to permit the operator to perform a preshift inspection on such equipment, but instead order the miner to start the equipment up immediately, and then cite for defects observed. On March 15, 2002, ALJ Zielinski issued a decision vacating two citations under such circumstances. While not establishing a precedent for the industry, the decision in Texas Architectural Aggregate (TAA) provides mine operators with an alternative practice to avoid citations, under certain circumstances.
In TAA, the mine was in intermittent operation and, at the time of the inspection, was open on weekends for the limited purpose of reclaiming existing stock of material. The mine manager had to escort the inspector to the quarry and no miners were present. The inspector observed a front-end loader with a cracked windshield, and directed the mine manager to start it up and move it forward to check the brakes. The inspector noted that the back-up alarm did not function and issued two citations for the windshield and alarm, both non-significant and substantial.
The inspector acknowledged that no miners were at the site, but maintained that the loader was “available for use” because it was parked and not tagged out. The mine operator countered that the loader had not been used in its defective condition and that the windshield and other defects would have been repaired before it was used. The operator offered testimony that the area where the loader was parked was commonly known to miners as a “dead zone” where equipment was placed if it was not available for use.
ALJ Zielinski found that MSHA failed to carry its burden of proof. He noted that, while generally the standards concerning equipment defects must be complied with even though the equipment is not actually being used during a particular shift, equipment can be “effectively taken out of service” by means other than tagging it out or placing it in a posted area. This occurred in the TAA matter because there were a small number of employees, and they had actual knowledge that the parking area meant the equipment was not available until defects were repaired. Therefore, the citations were dismissed.
FMSHRC Wrong Place to Litigate ADA Claim
ALJ Manning has dismissed a charge of discrimination brought against U.S. Borax by worker Louis Dykhoff. In his March 27, 2002, decision, the judge found that Dykhoff was not subjected to retaliatory actions after complaining to MSHA about the condition of a concrete slab at the mine’s truck docks. The worker complained that he was sent home in late December 2000 because he had trouble climbing stairs. He was transferred to other positions and has not returned since to the Boron operation. The miner has a number of medical problems, including degenerative joint disease and back problems, which kept him from working most of the previous year, and which had triggered work restrictions since 1995.
The ALJ found that the miner engaged in protected activity when he complained about fumes from boric acid and the condition of the ramps, docks and slab, as well as raising other safety concerns with the company. The company was aware of these safety concerns and his actions in reporting concerns to MSHA, ALJ Manning observed. However, Dykhoff had been a safety activist for many years without adverse consequences, and the worker currently has a case pending under the Americans with Disabilities Act.
The judge noted that the “Commission does not sit as a super grievance board to judge the industrial merits, fairness, reasonableness or wisdom of an operator’s employment policies” except as they pertain to the Mine Act. ALJ Manning found that the worker failed to establish that his transfer was related to his safety activities, or that any discipline against him for excessive absenteeism was a violation of Section 105(c). The judge found U.S. Borax’ explanation for the actions taken against Dykhoff to be “entirely plausible and credible.” Moreover, because the worker failed to file a complaint with MSHA within 60 days of the occurrence of the alleged discrimination, the complaint might be time-barred, even if supported on the merits.
Discrimination Case
ALJ Schroeder has ordered the temporary reinstatement of a miner who alleged that he was discharged one day after making safety complaints to MSHA. In Griffitts v. Coalfield Services, Inc. (Docket VA 2002-32-D), the judge found that the fired welder’s complaint was “not frivolous” and, therefore, he should be reinstated to his previous job pending final adjudication of his discrimination charges under Section 105(c) of the Mine Act.
The miner had complained to his supervisor about loose metal that had the potential to enter a chute where he was performing maintenance, and said that he feared it could amputate his legs. The company disputed that any danger existed, but the ALJ held that the worker reasonably believed his health and safety were in immediate peril when he left work and refused to report in the following day. The worker called MSHA to report his concerns, and the company was cited as a result. The day after the MSHA inspection, the worker was terminated for failure to follow company policy and failure to return to work. ALJ Schroeder observed: “Where an employee has exercised rights under the Mine Act, management has a heavy burden of showing an independent business justification for adverse action.”
Attorney’s Mistake Penalizes Mine Operator
An attorney who filed a Notice of Contest for multiple citations, but failed to send in the “green card” did not commit a “mistake” or engage in “excusable neglect” that warrants reopening a final order pursuant to FRCP 60(b)(1). ALJ Barbour refused to reopen an order to pay more than $14,000 in penalties in Perry County Coal Corp., on April 16, 2002.
The Commission and its ALJs commonly grant such relief when requested by a mine operator who loses the form or misses a deadline due to clerical error. However, the ALJ distinguished this matter by noting that the operator was represented by counsel from the time that the notice of contest was filed, and counsel could have been made aware of the need to file a separate contest for the proposed penalty assessment through “basic research or inquiring into Commission procedures.” He rejected the claim that filing a single notice of contest was sufficient to contest all four citations in the docket plus any subsequent proposed penalties.
EAJA Fees Awarded To Pronghorn
Pronghorn Drilling Company has been awarded $58,395 in attorney fees and expenses under the Equal Access to Justice Act, as a result of litigation brought by MSHA. Judge Melick’s March 4, 2002, final decision came days after he denied MSHA’s Motion to Reconsider previous ALJ findings that MSHA’s position was not “substantially justified.” MSHA had asserted jurisdiction over the milling of uranium, but ALJ Melick noted that there was never any doubt that the mineral was being mined in liquid form with no workers underground (conditions that exempt an operation from MSHA jurisdiction). He stressed that where jurisdiction is raised, “the Secretary must always examine herself to determine whether she can proceed with litigation” and that, based on the clear statutory language concerning liquid extraction processes, this should have led the Secretary to immediately question her jurisdictional authority. The judge failed to find that the mine operator had unduly protracted or delayed the underlying proceeding, and did not find any other special circumstances that would make the EAJA award unjust.
Injunction Appropriate to Permit MSHA Dust Sampling
A United States District Court has granted MSHA a permanent injunction to enter a Pennsylvania mine to perform respirable dust sampling. In Chao v. Rothermal et al. (U.S. District Court, M.D.Pa., April 25, 2002), the court considered whether MSHA had authority under Section 103(a) of the Mine Act, 30 U.S.C. §813, to perform bimonthly inspections of mines to sample for respirable dust, after the mine operator refused to permit the inspector to enter for that purpose. It held that a permanent injunction was appropriate because the Secretary had no other effective legal remedy in the face of repeated refusals to admit the inspectors, and there was a demonstrated irreparable threat of injury to miners if they were overexposed to respirable dust.
The court found that, in addition to the statute’s regular inspections (the “two’s and four’s”), the Mine Act permits the Secretary of Labor to develop guidelines for “additional inspections of mines based on criteria including…the hazards found in mines…and his experience under the Mine Act and other health and safety laws.” The Secretary has developed guidelines for bimonthly inspection of coal mines for respirable dust based on the demonstrated problem with black lung disease. Even though mine operators are also responsible for dust sampling, the court ruled that the MSHA inspections do not place additional burdens on mine operators and, therefore, do not constitute an unnecessary duplication of effort that would otherwise violate Section 813(e) of the Act.
The court added that the Act gives MSHA broad authority to enter mines to conduct health and safety inspections, and respirable dust inspections are well within that authority, even though the guidelines were never published as regulations. The dust guidelines do not replace or revise existing mandatory standards, but simply establish procedures for conducting respirable dust sampling inspections to ensure compliance with the mandatory standards. However, referencing the U.S. Supreme Court decision in Donovan v. Dewey, the court warned that MSHA’s inspection powers are not unlimited and mine owners can challenge the right to enter a mine under the Act.
The decision is potentially significant for aggregate producers in light of MSHA’s increased health standard activity and the potential for MSHA to expand inspection authority by authorizing guidelines for agency sampling related to noise, silica, asbestos and other air contaminants.
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.