August 2003

Regulations

Rock Law: Regulations That Fit Your Needs

On Review: Imminent Danger Order Vacated
Rock Law

Regulations That Fit Your Needs

A variance allows a producer to develop a regulation tailored to his operation, if protection is comparable.

By Willa B. Perlmutter and Henry Chajet

Employers must comply with safety regulations that often contain detailed requirements and may be difficult to meet. Failure to comply risks a high price in both penalties and indirect costs (e.g. violations support lawsuits, punitive damages, or criminal prosecutions). However, there is an alternative to strict regulatory compliance: an approved modification of the regulation that provides an exemption and/or an alternative method of protection.
While modifications can be highly beneficial, the process for obtaining them can be complex and lengthy. Regardless, numerous “carbon copy” MSHA modifications have been granted (reported on MSHA’s web site), and we have obtained unique modifications including:

  • The elimination of the requirement for berms on elevated roadways in permafrost hazard conditions;
  • The elimination of the prohibition on the use of used oil for blasting materials; and
  • The use of alternative protective measures to those required for hoists, cranes, and derricks.

Both the Mine Safety and Health Act (Mine Act) and the Occupational Safety and Health Act (OSH Act) permit an employer to petition the Secretary of Labor for permission to deviate from detailed regulatory requirements so long as workers are protected. For example, the Secretary of Labor may grant an MSHA modification of a safety standard, only if:

To formally initiate the process, a written modification petition must be filed with MSHA’s Office of Standards. 30 C.F.R. Part 44 requires specific information and to avoid additional delay, it is important to provide all required detail in the first filing (www.msha.gov/regdata/msha/44.0.htm).
Experience has proven the advantage of discussing a potential petition with the agency’s regional/district office (and sometimes the technical support group) in advance of filing, since they likely will be called upon to evaluate the petition. Obtaining early information on “acceptable” alternative protections is valuable and can create the spirit of a joint effort that serves the common goal of promoting safety.
Obtaining the support of site employees before filing the petition also provides advantages. Employees will be consulted anyway, and opposition will undoubtedly delay the process while a statement of support expedites the process and prevents or negates opposition later.
Of course not all modification requests are met with a cooperative approach by the government and the workforce, and the time frame for a modification proceeding is often measured in years rather than months. As a result, employers must understand the process, and their rights to obtain a modification, in the event a contested proceeding is encountered or undue delay takes place.
An MSHA petition must include the following:

  • The company’s name, address, and the affected i.d. number(s);
  • The mandatory standard that will be modified;
  • The proposed modification;
  • The alternative means to protect…the miners; and/or
  • The reason that complying with the standard would diminish safety.

A copy of the petition must be provided to the miners’ representative, either by hand or by certified mail, return receipt requested. If there is no miners’ representative, a copy must be posted at the mine.
Three things happen when MSHA receives the petition:

  • MSHA notifies the miners’ representative;
  • MSHA publishes a Federal Register notice of the petition seeking comments; and
  • MSHA begins an investigation of the petition that includes a site visit and evaluation.

MSHA’s Handbook Number PH89-0I-1 spells out the procedures and is available on line: http://www.msha.gov/readroom/handbook/PH89-I-1.pdf
When the investigation is complete, a report is circulated for comment. Thereafter, the government issues a proposed decision and provides a copy to the operator and to the miners’ representative, giving each 30 days to comment.
The government’s proposed decision may contain conditions, other than those proposed by the employer, that are mandated in order to use the petition’s modification of a regulation. Essentially, if the petition is used by the operator to escape from the requirements of a regulation, the petition (and its conditions) becomes a “personalized, alternative regulation” for the operator, and is enforceable by the government. However, the operator can always revert to compliance with the regulation and not use the granted petition, or appeal from the granted petition to attempt to delete any unacceptable conditions.
MSHA’s decision becomes a final decision unless one of the parties requests a formal legal hearing by a Department of Labor Administrative Law Judge (ALJ) within 30 days of the MSHA proposed decision. In the unlikely event a hearing is needed, they are conducted according to the procedures outlined in Subpart C of 30 C.F.R. § 44. Each side can conduct discovery and present witnesses and evidence for consideration by the ALJ. Within 30 days of an ALJ decision, a party can formally appeal the ALJ decision to the Assistant Secretary for Mine Safety and Health, and his decision is subject to appeal in the federal courts, although such appeals are very rare.
An operator can also file an application for temporary relief with MSHA at any time before a proposed decision is issued on the Petition. Temporary relief permits operations as though the modification has been approved, while waiting for the agency and ALJ to make a decision. To obtain temporary relief under 30 C.F.R. § 44.16, the operator must state and show that:

  • The application is filed in good faith;
  • The requested relief will not have a negative impact on health or safety;
  • Applying the standard creates an “identifiable hazard” to miners; and
  • The operator will use other means to “reasonably address” the hazard that the standard was designed to protect against.

The agency will conduct an investigation in temporary relief cases, as well as petition cases, but in the case of a temporary application, MSHA rules require a decision no longer than 60 days after the application. If granted, the temporary relief is effective until a final decision is issued on the permanent application.
In contrast to MSHA’s routine issuance of modifications, it is extremely difficult to obtain a variance from OSHA. Reportedly, OSHA has allowed only 17 variances, in comparison with the hundreds issued by MSHA. However, variances are permitted by the law, and this author believes that if a good public policy argument (lobbying) can be made, additional variances will become available at OSHA.
OSHA’s website (http://www.osha.gov) is a useful source of information about the agency’s program and variance procedures, (29 C.F.R. § 1905.11, Subpart B). However, in a state that has assumed OSHA responsibility, the state OSHA office receives and acts on the application. Special rules apply if you have worksites in more than one state [see 29 C.F.R. § 1905.11(8))]. OSHA’s procedures are similar to those of MSHA described above, and must be consulted and followed in detail to avoid delay and to maximize the potential for obtaining a variance.
A variance can solve significant problems by creating a regulation that fits the needs of the employer. However, a variance petition at MSHA or OSHA does not prevent the issuance of a citation for failure to comply with the applicable regulation or automatically suspend abatement required by a citation. A number of variance proceedings we have handled were initiated because a citation had already been issued or was threatened. In such situations, negotiations with agency attorneys and personnel were successful in obtaining reasonable abatement times that permitted the variance proceeding or the citation challenge, so long as they were accompanied by employee protection; the critical element that is required to obtain the benefits of a variance.

Henry Chajet is a partner in the Washington, D.C. office of Patton Boggs LLP.

Willa B. Perlmutter has been an associate with the Environment, Health, and Safety practice group at the law firm of Patton Boggs LLP in Washington since 1997, focusing on mining law.

The firm’s website is located at www.pattonboggs.com.

On Review

Imminent Danger Order Vacated

ALJ overrules inspectors who cite “fishtailing” bulldozers operated more than 200 ft. away.

By Adele Abrams, Esq., CSMP

ALJ Hodgdon vacated an imminent danger order issued to a surface coal operation, finding that the inspectors did not perform a “reasonable” investigation prior to issuing the order and, therefore, abused their discretion. In Vandalia Resources, Inc. (ALJ, June 27, 2003), an MSHA inspector and his supervisor were at the mine to observe a highwall operation. While preparing to leave the mine, they observed reclamation work and saw a bulldozer “fishtailing” while descending the slope. The inspectors were about 200 ft. away at the time. As they approached to issue a Section 107(a) order, the inspectors observed a second dozer descending in a manner that appeared hazardous.
In trial testimony, the inspectors indicated that they had decided to issue an order before they observed the second vehicle’s actions, but both were covered in the “stop work” order. No citation was issued in conjunction with the bulldozing activity alleging violation of any mandatory standard. The equipment operators, all of whom had extensive experience, claimed that they were in full control of the equipment and that some sliding is normal and did not pose a hazard of overturning. The ALJ noted that neither inspector had any experience operating such equipment.
Section 3(j) of the Mine Act defines “imminent danger” as “the existence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.” The Commission’s interpretation adds that an imminent danger exists if the condition or practice observed “could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated,” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (FMSHRC 1989). To support such a finding, “the inspector must find that the hazardous condition has a reasonable potential to cause death or serious injury within a short period of time,” Utah Power & Light Co., 13 FMSHRC 1617, 1622 (FMSHRC 1991). An inspector’s viewpoint is granted broad discretion, but the legal analysis focuses on “whether the inspector made a reasonable investigation of the facts” and “whether the facts known to him, or reasonably available to him, supported the issuance of the imminent danger order,” Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Commission 1992).
Here, Judge Hodgdon found that the inspectors were too far away to make a reasonable determination based on observation of the first bulldozer, and that they did not observe either dozer make a complete run down the slope. Moreover, they failed to discuss their observations with the equipment operators or the foremen, and too little time elapsed to support a finding that a reasonable investigation occurred. The judge also credited the testimony of the experienced miners over “the conjecture” of the inspectors. The imminent danger order was vacated.

Electrical “work” defined in substation explosion
Miners were performing electrical “work” when they were repairing a fail-safe device designed to provide visual assurance that electrical circuits were open — and therefore, two Section 104(d)(1) citation/orders were affirmed. In Peabody Western Coal Co. (ALJ Manning, June 12, 2003), the ALJ also increased the proposed MSHA penalties for the two violations from a total of $12,000 to $15,000, following a merits hearing.
The case involved substation relocation work performed by a three-man electrical crew under the direction of the mine’s electrical manager. The substation had a window in the load door to permit visual observation of whether knife blade switches were open or closed. A closed switch indicates that the circuits are energized and present an electrical hazard. A separate lever indicated that the circuit was open (de-energized) while the knife blades showed a closed circuit.
After unsuccessfully attempting to fix the problem by jiggling the lever, the miners notified the electrical manager, who performed additional trouble-shooting and finally suggested loosening the plexiglass shield to permit the miners to use a grounding stick to disengage the knife blades. One of the experienced electrical workers suggested that the 69 kV circuit on the other side of the substation should be deenergized first, but the manager rejected his suggestion.
After prying some of the blades open, a small ball of fire was observed, which the manager dismissed as “capacitive discharge.” As the workers continued, there was a sudden sound of arcing current and a large fireball came out of the blade area. Electrical parts flew through the air. No one was injured in the incident. Further investigation revealed that the substation was wired differently than others on site, and the circuit breakers were installed between the knife blades and the cable couplers, rather than between the transformer and the knife blade switches.
MSHA received an anonymous complaint about the electrical incident and, following an inspection, issued a citation and two orders under Section 104(d)(1). One order was voluntarily vacated by the Secretary prior to the hearing. The first citation alleged that the 69-kV high-voltage power was not de-energized before work was performed (an S&S citation with high negligence). The cited standard requires power circuits and electrical equipment to be “de-energized before work is done on such circuits and equipment, except when necessary for troubleshooting or testing.”
Peabody argued that the workers’ activities were “troubleshooting” within the standard’s exception. MSHA countered that loosening the plexiglass shield marked the end of troubleshooting and referenced the MSHA Program Policy Manual, which notes that troubleshooting or testing includes “the work of locating an electrical problem in the electric circuits on an energized machine, but would not include the actual repair with the machine energized.”
The ALJ found that it was not necessary for the circuits to be energized to perform the tasks at issue, and that the troubleshoot exception does not apply when, as here, the electrician thinks the circuit is de-energized. Moreover, it was not disputed that the electrician would not have performed the troubleshooting if he had known that the circuit was energized. ALJ Manning added that use of the grounding stick to disengage the knife blade was “work” to fix a mechanical problem. He also rejected Peabody’s argument that the violation was not significant and substantial. Moreover, he affirmed the “unwarrantable failure” (high negligence) finding because of the involvement of the supervisor, the supervisor’s acknowledgement that his activity was “bad electrical practice,” his rejection of the suggestion that the adjoining circuit should be de-energized, and the fact that the action presented a high degree of danger. The judge affirmed the violation and increased the penalty from $5,000 to $7,000.
The Section 104(d)(1) order alleged a violation of the coal “lockout/tagout” standard (30 CFR 77.501). Peabody advanced similar arguments with respect to the definition of electrical “work” and the gravity of the citation. ALJ Manning affirmed the order, finding that Peabody had failed to lockout and tagout the disconnecting devices (the 69 kV blades) before commencing work on the 23 kV trunk line. He again stressed that the general “troubleshooting” exception is designed to allow an electrician to knowingly work on a live circuit in certain circumstances. The unwarrantable failure finding was supported because of the direct involvement of Peabody management. The judge increased the civil penalty from $7,000 to $8,000.

Loader citations upheld
ALJ Zielinski recently upheld six out of seven citations issued to a five-employee Missouri limestone operation, but reduced total penalties from $2,671 to $1,025. In Washington County Aggregates (ALJ, June 17, 2003), the company contested seven out of 11 citations issued dealing with mobile equipment, noise, fire safety, and guarding issues.
MSHA had specially assessed an alleged violation of 56.14101(a)(1), claiming that the service brakes on a Caterpillar 966B would not stop and hold on the grade tested. MSHA had issued an oral imminent danger order, issued a “highly likely” citation with high negligence, and proposed a $2,200 penalty.
After hearing testimony, ALJ Zielinski found that a violation did occur, but that the grade upon which the loader was tested was not normally traveled by the equipment. He noted that the S&S determination must be made based upon a presumption of continued normal mining operations.
Although the judge rejected the “highly likely” finding, he affirmed the citation as S&S with moderate negligence. Despite this ruling, he affirmed the imminent danger order, which need not be based upon a violation of a mandatory standard. He found that evidence indicated the brakes were “weak” and there was a reasonable possibility that a collision would result. He reduced the assessment to $750.
The judge also affirmed a non-S&S citation issued because moving machine parts on the Cat loader were not guarded on either side of the engine compartment. He noted that guarding citations are analyzed on a case-by-case basis, after considering all relevant exposure and injury variables, accessibility of machine parts, work areas, ingress and egress, duties, and the “vagaries of human conduct.” He found that although the possibility of contact with the unguarded v-belt/pulley assembly was minimal, it was reasonably possible that a mechanic could inadvertently contact this while examining an idling engine. The judge affirmed MSHA’s proposed $55 penalty, after rejecting the operator’s claim that it had not received fair notice of the requirement because the truck had been inspected before but not cited. He said there was no evidence that the parts were not guarded during prior inspections.
ALJ Zielinski affirmed a citation issued because the mine operator stored gasoline in a 5-gallon ANSI-approved plastic container. He noted that the can was similar to those used by most homeowners, and that the can met ANSI and UL specifications. However, it failed to satisfy the requirements of 56.4000, which defines “safety can” as having a spring-closing lid and spout cover. Although MSHA issued this as an S&S citation with $196 penalty, the judge found that the can was in good condition and the possibility of a fire resulting was “remote.” He reduced the penalty to $55.

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.

AggMan is a publication of Mercor Media, Inc. Copyright © 2003 - Mercor Media, Inc.