September 2001 AGGMAN Operations

Powered haulage has long been touted as the leading category of accidents in the aggregate industry. In July 1998, the Mine Safety and Health Administration (MSHA) went as far as issuing an Advanced Notice of Proposed Rulemaking on powered haulage, although no proposed rule has yet been announced in the Federal Register.
In its notice, MSHA claimed that “30 percent of fatal mining accidents at surface mines and surface areas of underground mines over the past three years involved surface haulage equipment. Further, this equipment was cited as the primary cause in 40 percent of the fatalities last year (1997) in the metal and non-metal mining industry.”
The notification also said that MSHA had examined approximately 8,000 surface accidents (from 1987 to 1996) involving powered haulage equipment which resulted in either fatalities or lost work days. In that evaluation, MSHA claims that 120 miners were killed and 1,377 were injured due to three causes or contributing factors: unused or inadequate occupant restraint systems on the equipment; blind areas on self-propelled mobile equipment; and lack of adequate illumination.
In the notification, MSHA outlines some of the actions it is considering for inclusion in a proposed rulemaking (see Figure 1).

Potential Surface Haulage Requirements from MSHA

Restraint systems:

Require all vehicles to have lower torso restraint systems for both operators and passengers, regardless of whether or not the vehicle has roll over protective structures (ROPS);
Require new equipment to include upper torso restraint systems and an interlock system to prevent movement of the vehicle unless the restraint system is engaged; and
Mandate seat belt use.

Illumination:

Permanently mounted lighting for pre-operational examination of equipment;
Automatic backup lights that illuminate the rear-tire-to-ground contact area;
Ground surface lighting for certain excavating equipment operating in areas with uneven or irregular surfaces;
Lighting necessary to see the road ahead and objects in blind areas;
Lighting on steps and hand grip areas to get in and out of the operator’s compartment on off-highway equipment; and
Illumination of the ground area at the base of the steps of off-highway equipment.

Blind spots:

Have a system, such as video cameras, to enable the operator to see blind areas;
Have an automatic sensor to detect objects or people in the blind area;
Have a signal to alert people that they are in blind areas; and
Provide a signal to the operator when objects or people have been sensed (sensors should use infrared, radio frequency, Doppler radar or equivalent technology)

Figure 1

While the agency has not yet published a proposed rule, members of the aggregate industry decided to conduct some research of its own.
Through a National Stone, Sand & Gravel Association task force, industry safety personnel combed through five years of fatality reports (1995-2000) to independently evaluate them.
The results of the evaluation indicate that, in numerous cases, accidents unrelated to powered haulage were included in those statistics.
“Out of the 119 cases, there were three that were attributed to obstructed view or blind spots,” said Dana Glover-Smith, safety manager, aggregates, for TXI and chairman of the task force.
Of those three, the first involved a rear dump truck, the second involved a flatbed truck and the third involved a forklift.
Two more fatalities were attributed to insufficient seatbelt protection or a seatbelt that was not worn, with another 22 cases where seatbelts were listed as a contributing factor. In each of the 22 cases, seatbelts were not worn at all.
Illumination was a factor listed in four of the fatality reports.
So, while MSHA was writing an advance notice for proposed rulemaking to address what it considers to be the numerous fatalities attributable to seat belts, blind spots and poor lighting, the task force found that only a small percentage of the fatalities could be directly traced to the three areas.
In contrast, 18 of the fatalities categorized as “power haulage” dealt with guarding or were machinery related. And, in 55 of the cases noted, there had been no Part 48 training.
“If we enforce the current regulations, especially Part 46, we should be able to prevent these fatalities from happening in the future,” said Glover-Smith.
Since the advanced notice was issued under the leadership of former Assistant Secretary of Labor Davitt McAteer, what may happen under the new administration and current Assistant Secretary Dave Lauriski remains to be seen.

Hanson operations used a three-camera configuration to test the utility of cameras mounted on the front, side and rear of the haul trucks. In most cases, the drivers derived the best information from the rear camera, which also proved the most difficult to clean.

In the meantime, the task force also conducted producer-based tests to see if some of the potential requirements would truly improve safety in aggregates operations.
In the notification, MSHA said that it is “considering a performance approach where mine operators would be required to eliminate left, right and front blind spots on all rear dump trucks and articulated front-end loaders” and was also “considering a requirement that all blind areas, including the rear, must be eliminated on off-highway rear dump trucks and articulated front-end loaders.”
The task force worked with Intec Video Systems, Inc. to install a three-camera configuration on Cat 771 and Cat 777 haul trucks at two Hanson operations.
Hanson’s first challenge was to determine how to mount the cameras.
“Being able to install a video system on each piece of equipment was hit or miss,” said Mike Neason, safety director for Hanson Aggregates Midwest. “There’s not a real specific way these things are suppose to be mounted.”
Neason said that the mines involved in the pilot study were essentially breaking new ground in terms of determining where to place the cameras, how to mount them and how to install the monitor.
The monitor provided the greatest challenge in terms of installation. Because the cabs are not designed to accommodate the monitors, custom modifications were required. By tapping into a 12-volt power supply, such as the one used for a CB radio, however, the Hanson team was able to power the monitor without impacting any manufacturer warranties.
The first installation, at Hanson’s Harding Street operation in Indianapolis, Ind., took a team of three most of a day to complete.
Afterward, Neason sent photos of how Harding Street installed the cameras to Hanson’s Sandusky operation to help them through the process.
At Hanson, Neason found that after they had completed the installation once, the process was easier to replicate.
And, while they struggled with installation, maintenance of the system proved to be a pleasant surprise.
“The first concern we had when mounting the cameras was that everything on the truck has bushings on it to handle the vibrations,” said Neason. “The cameras were mounted metal-to-metal, straight on the truck, but we didn’t have any problems.”
According to Neason, day-to-day maintenance depends on placement of the camera. For instance, the rear camera tended to catch more mud and could be more difficult to clean. On smaller haul trucks, operators could reach the rear camera to clean it, but on larger trucks a special step was required.
Overall, however, it was the rear camera that provided the most utility.
“We thought the right side camera was going to be most beneficial, but the angle that the rear camera is able to pick up is wide enough to take out the blind spots on that side,” said Neason.
Another interesting point raised through testing of the cameras was how they can best be used in an aggregate operation. Because movement in the pit area is highly structured and involves little foot traffic, there is not as great of a need for the cameras.
“The places where we found more use for it were in the stockpile areas, in the shop areas and when you’re moving in and out of the quarry,” said Neason, adding that there was greater benefit in areas with more foot traffic or a changing work environment.
Both Neason and Glover-Smith said that the test results were inconclusive in determining the true merits of such a system because there are so many variables involved in the equation. For example, type of equipment use and traffic patterns in a plant could lead to different results on the same piece of equipment operating in two different plants.
Hanson has also installed a scaled down camera system on its ready mix trucks in Ohio. Neason says that has worked out well and is now a standard part of the truck’s safety equipment. But, as Glover-Smith pointed out, ready mix trucks are governed by OSHA regulations and would not be subject to any future MSHA rulemaking.
“We have seen value in some applications,” said Neason. “But it’s still too soon to see if it’s going to beneficial in our mining operations.”
The bottom line is that if an operation has a blind spot problem, using the cameras to help resolve it may be worth the investment, but regulating use of the cameras is premature.

How a 3-oz. Fish Can Stop a 50-ton Drag Line: Living with the Endangered Species Act

The Endangered Species Act of 1973 (ESA) is arguably the most potent of the nation’s environmental laws. Indeed, there are few other situations where a 3-oz. fish or a 1-in. fly is powerful enough to stop a bulldozer dead in its tracks. Yet, that is exactly the impact that the presence of an endangered species or its habitat may have on a project.
Given its goal of protection of species on the brink of extinction, the ESA leaves very little room for compromise and tilts very heavily in favor of protecting the species at all costs. This uncompromising nature has spawned extensive litigation. Consequently, “train wrecks” are not uncommon—whereby projects that have undergone years of planning are halted at the eleventh hour due to the potential impact on a species.
The designation of public and private land as “critical habitat” for listed species has been especially contentious as the United States Fish and Wildlife Service (FWS) has been forced to set aside large land areas for species protection as a result of litigation. For example, the critical habitat for the red-legged frog is proposed at more than 4 million acres. More recently, an entire town of ranchers and farmers was told that there will be no irrigation for their crops or cattle in order to provide the limited water for several species.
While the example of a project being derailed is somewhat of an extreme scenario, the message to the aggregate industry is that ESA issues can be significant. Moreover, in the present climate, they are unlikely to go away. As a result, learning how to navigate the ESA process will become increasingly more important to the success of mining and reclamation operations alike.

The ESA provides that any “interested person” may petition the secretary of the Interior to add a species to, or to remove a species from, the list of endangered and threatened species. The FWS makes its determination whether or not to list the species on the basis of its analysis of factors such as the destruction of the species’ habitat and any other factor affecting its continued existence. Concurrent with the listing, FWS is required to designate specific geographical areas as “critical habitat.” Generally speaking, critical habitat includes specific areas that have physical or biological features that are essential to the species and that may require special management considerations or protection.
Section 9 of the ESA prohibits “take” of endangered species without specific authorization from the service. “Take” is broadly defined to include to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect” a listed species. In turn, FWS defines the term “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” This broad definition was upheld by the Supreme Court in a case known as Sweet Home.
Given that the ESA provides for civil or criminal prosecution for illegal takes (which can also be initiated by third parties), it is important to be aware of the potential impact of a project on an endangered species or its habitat.
There may be situations where “take” of species is not deliberate, but is unavoidable. Under section 10(a), FWS is authorized to issue Incidental Take Permits (ITP) to a party whose otherwise legal activities might lead to a “take.” This, however, requires a preparation of a Habitat Conservation Plan (HCP) and minimization of the harm to the maximum extent practicable and mitigation of the impact. This can be somewhat costly and time consuming, but is a viable option if the impacts on the species simply cannot be avoided.
Finally, if a project requires a federal permit, receives federal funding or has any other federal nexus, section 7 of the ESA requires the sponsoring federal agency (e.g. the Corps for wetlands permits) to consult with FWS to ensure that the project is not likely to jeopardize the continued existence of an endangered species or result in the destruction or modification of its critical habitat. This gives FWS substantial leverage to require changes to the project.

Given the above, the potential presence of an endangered species or its habitat may have significant impact on a project. This may include limits on the scope of the project, restrictions on time of the year of construction or mitigation requirements. In extreme circumstances, it is possible that the project will not be able to go forward. As a practical matter, ESA compliance often leads to permitting delays, together with greatly increased costs associated with operational modifications, timing uncertainties and costs associated with analyzing and responding to environmental studies such as environmental impact statements.
Without proper planning, the possibility of the “train wrecks” discussed above are a reality for many projects. As of FY 2000, there were 1,244 plants and animals on the endangered and threatened list. While most project managers would probably be aware of the presence of a grizzly bear on site, figuring out whether the microscopic fairy shrimp that inhabits seasonal vernal pools is an endangered “Conservancy” shrimp or simply a common “sea monkey” can be a difficult and expensive process. Aggregate mining and reclamation activities can be particularly vulnerable to ESA issues given that aggregates, by their very nature, are often located in areas where species are present, such as streams and wetlands.
All this is not to say that the ESA has to be a “show stopper” every time. In recent years, the service has been more willing to work with landowners to strike a balance between the needs of the species and the necessities of the projects. HCPs are becoming less time-consuming and one can find a creative means of striking the proper balance—species can be avoided, or even moved; off-site habitat can be purchased and protected; or on-site habitat can be enhanced or created.
The key to avoiding an eleventh hour derailment is to be proactive in addressing potential ESA issues up front. Some level of endangered species due diligence ought to be performed prior to any significant land disturbance in previously undeveloped land.
Knowledge of the presence of endangered species or their habitats will be crucial for planning the project (e.g. avoidance of the sensitive areas). Some may consider retaining a biologist or technical consultant to assist in the planning and permitting of projects. This consultant must have specific experience in addressing endangered species issues and ought to have a good working relationship with FWS and the state Department of Fish and Game.
In the final analysis, a careful due diligence strategy is essential in order for aggregates managers to avoid an endangered species “train wreck.”

Lawrence R. Liebesman is a partner and Rafe Petersen is an associate in the Washington, D.C. office of Holland & Knight’s environmental practice group. They represent the National Stone, Sand and Gravel Association in wetlands litigation as well as various private and public clients in endangered species issues.

Jeremiah Gillan and Bob Gilbert, Valley Quarries operators, receive their MSHA Part 46 training using the New Miner Training CD-ROM from Colorado Rock Products Association.

Operators now under MSHA’s Part 46 training regulations have been given a slight reprieve from possible citations with Assistant Secretary of Labor Dave Lauriski extending MSHA’s special compliance assistance visit program to all first-time Part 46 inspections through Sept. 30.
While this is certainly helpful in getting operators prepared, the mining community still needs to be aware of case law that may help guide them in Part 46 compliance.
Since there is no case law on Part 46, the Federal Mine Safety and Health Review Commission will rely on coal/underground case law where the Part 48 regulation language is the same or similar as Part 46. Because of this, it is important to understand some of the Part 48 cases that have come before the commission.

While Part 46.12(b)(1) states that each independent contractor “has the primary responsibility for complying with §46.3 - §46.10,” it does not state that the mine operator will not be cited for contractor violations. Many operators have been led into a false sense of security by this language when, in fact, operators can be cited for a contractor’s training violations.
Perhaps the most troubling commission decision on this issue involved Mingo Logan Coal Co.
Mingo Logan was found liable for the violation of “new miner training” regulation, §48.5, committed by its independent contractor, Mahon Enterprises (2 MSHN 123).
Mingo Logan had contracted with Mahon to install a conveyor system at its mine. During an audit of Mahon’s training records, a MSHA inspector found that one of its employees had received newly-employed experienced miner training which takes about four hours, when he was not an experienced miner.
The employee should have received 40 hours of new miner training under §48.5. MSHA also cited Mahon for the violation and the contractor paid a $1,300 penalty.
Maurer found that Mingo Logan’s negligence was “nil” and assessed a $100 fine. The company appealed to the commission, arguing that it was not liable for Mahon’s training violation.
The commission disagreed with the company and stated that holding a production-operator liable for violations of their independent contractors “provides operators with an incentive to use independent contractors with strong health and safety records.” The commission also noted that prior cases have held that MSHA has the discretion to cite both the operator and the independent contractor for a violation committed by the contractor. This holds true under the new Part 46 rules.
The case was appealed to the U.S. Court of Appeals for the 4th Circuit which initially found that MSHA followed its general enforcement guidelines noting that Mingo Logan’s employees were placed at risk by Mahon’s training violation.
The court also found “nothing” in the agency’s specific policy regarding training violations which limits MSHA’s authority to cite a production-operator for a contractor’s violation.
The 4th Circuit noted that: “The MSHA policy simply emphasizes that independent contractors should be held directly liable for training violations involving their employees. It in no way, however, limits [MSHA’s] authority to also issue a citation to the production operator.”
While §46.12 does state that each independent contractor “has primary responsibility for complying with §46.3 through 46.10,” nowhere does the language state that the mine operator will not be cited for a training violation of the contractor.

Anderson Equipment is a good case to help you understand what the true definition of a miner is and what is meant by “exposure to the mine site for frequent or extended periods” of time. The definition of miner is open to misinterpretation because the training regulation’s definition of “miner” does not include maintenance or service workers who do not work at the mine site for frequent or extended periods of time.
In Anderson, a mechanic for a contractor (Anderson Equipment) was working on a front-end loader in a separate area of a surface facility in West Virginia when the mine was inspected. The inspector questioned him regarding his training, and he said that the coal company had provided him with hazard training and his company gave him safety-related training.
The inspector determined, however, that this training was not done in accordance with a MSHA-approved plan, and he did not have his MSHA training certificate as proof of training.
The mechanic was deemed to be a hazard to himself and others and was ordered to be immediately withdrawn from the mine site. The company was issued an S&S violation of §48.26, which is the equivalent of §46.6.
The question for the judge was whether the mechanic was a “miner”—as defined in the regulation—or a short-term maintenance or service worker.
At the hearing, the company argued that the mechanic was not a miner, but a mechanic or maintenance worker and did not need comprehensive training. The company also noted that he was not at the mine site for extended periods, but worked at different sites around the area, some of which included mines.
At the hearing, MSHA presented testimony that the mechanic worked frequently at mine sites and was sometimes there for extended periods (six days). One month, he worked at one mine site for 12 separate days. He had not worked at this particular site for six consecutive days, but had been at other mining sites. At the various mine sites, his work area was located in a segregated repair area, away from the mining operations themselves.
The judge said that because the mechanic worked at several different mine sites, he was considered to be a miner/maintenance worker and should have had newly-hired experienced miner training. The judge did drop the S&S charge against the company, saying that there was adequate proof that he was adequately trained—just not trained via a MSHA-approved training program.

Operators subject to Part 48 regulations have also found themselves frequently cited for “task training” violations in cases where they honestly believed that an equipment operator did not need additional training to operate a piece of equipment. While MSHA addresses such scenarios in its Compliance Guide for Part 46 Training Regulations, a look at the case law may help you to better understand the regulation.
Such a case involved Pyramid Mining. In this case, Pyramid’s failure to complete its training of a miner assigned to operate a bulldozer that had been modified with a conveyor or “stacker” violated the “new task training” regulation, § 48.27(a), which is the equivalent of §46.7. The auger mining site supervisor credibly testified that he had provided the miner with an hour of instruction and supervision regarding the operation of the stacker. However, the supervisor conceded he had not yet trained the miner to line up the stacker and the auger or to direct the alignment of coal trucks under the stacker before he began operating the stacker. The judge ruled that the violation was not S&S because the operator had substantially complied with the regulation and the miner had 12 years of experience operating heavy equipment, including bulldozers.
In another case, an operator, FMC Corp., believed it did not need to task train a miner. Here, a bulldozer operator was assigned to run a front-end loader. The ALJ ruled that the company had violated the standard because fundamental differences exist between a loader and bulldozer. In this case, the supervisor was also found liable under §110(c) of the Mine Act because he had actual or constructive knowledge that miner had no previous experience on loaders.

A small surface coal mine operator, Rostosky Coal Co., violated §48.29(a) for failing to keep copies of training records at its mine site. The operator argued that it couldn’t keep copies of the training certificates at the mine site because of several instances of vandalism at the trailer located on the site. To keep the records safe, the operator kept the records at his home. While the company’s concerns were credited, it was held that the regulation specifically requires the records to be kept at the mine site.
While Part 46 offers more flexibility than Part 48, you still have only 24 hours to produce a training plan. Training records, however, must be produced by the end of the inspection on the day that MSHA requests the records.
These are just some examples of the types of citations under Part 48, which would be applicable to Part 46. Operators may want to read some of the Part 48 case law so they can be familiar with MSHA policy and practices which may occur under Part 46.

Ellen Smith is the owner of Legal Publication Services, Pittsford, N.Y., which publishes Mine Safety and Health News.

Editor’s Note: This is the first article in a new AggMan column that will provide practical legal advice for operators who prefer to watch lawyers on T.V. rather than from across their desk during business hours.

Welcome to the inaugural “Rock Law” column. In this space, we are going to try to give you practical advice about developments in the law or related to the law that will help you better plan your operations to your best advantage. Sometimes that means seizing opportunities that are presented, and sometimes that means simply avoiding the pitfalls. Either way, if we’re successful even part of the time, we hope that you will come to view legal advice as at least potentially valuable, rather than a full–time harbinger of bad news.
For our first example, let’s turn to my favorite legal text: Alice in Wonderland. If you remember, that story introduces us to Humpty Dumpty, a pompous talking egg. No matter what he says, he insists that his words mean something totally different. He says that when he says what he means, it means whatever he means it to mean. In that way, he twists everything he says into something that no one could have anticipated.
Remind you of anything? Every government agency does this kind of thing all the time. MSHA is constantly issuing new “interpretations,” ranging from the opinion of the latest inspector to come to your property to formal statements in the Program Policy Manual. MSHA is not alone in this practice. Every federal, state or local agency engages in it to some extent or another. Every time you think you’ve figured out what they mean, the inspector tells you they changed their interpretation and you must, therefore, change everything you so carefully planned to meet your suddenly obsolete understanding of an otherwise impenetrable regulation.
For years, the government just got away with it. They relied on a 1984 Supreme Court decision called Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., which held that courts must give effect to any agency interpretation of an ambiguous statute or regulation as long as that interpretation is “reasonable.” In practice, this meant that if the statute or regulation was ambiguous (most are), a court would consider almost any agency interpretation of either to be “reasonable.” In other words, under Chevron, when an agency says something, it gets to be just like Humpty Dumpty and twist that meaning into whatever it wants at the moment, so long as the interpretation is “reasonable.” (And, it is extremely rare for a court to find that an agency’s interpretation is not “reasonable.”)
But just like Humpty Dumpty, who fell from his wall, the agencies have suddenly fallen from grace. Over the course of its two most recent terms, the Supreme Court has issued two decisions that severely limit the scope of the Chevron doctrine. In Christensen v. Harris County and United States v. Mead Corp., the court held in essence that unless agency interpretations are issued in the course of a formal rulemaking, courts are not required to defer to those interpretations except to the extent that they “have the power to persuade.” In other words, instead of just taking the agency’s word for it, it looks like courts might actually start to review agency interpretations on their merits.
Remarkably, this change in the way that the courts view agency interpretations of their regulations and statutes has gone all but unnoticed, except in legal circles. Agencies continue to reinterpret their regulations as though nothing has changed, and companies continue to accede to those often arbitrary and incomprehensible pronouncements. In order to make the Supreme Court’s decisions mean something, we must change the way in which we respond to changes in agency interpretation. Each time an agency attempts to change its mind without apparent justification and the change affects the aggregate industry, we must have the courage to call them on it. Humpty Dumpty has fallen and this time, it looks like he can’t get up.

Mark Savit (msavit@pattonboggs.com) is a partner in the Washington, D.C. office of Patton Boggs LLP. The law firm’s website is located at www.pattonboggs.com.

Got a legal question? Curious about an issue that you think might affect the aggregate industry? Let us know. To a great extent, the success or failure of this column will depend on you. Please send us your questions, comments, suggestions and lawyer jokes to AggMan Rock Law, 26 North Fourth St.; Gettysburg, PA 17325; (717) 337-0027; fax (717) 337-9337; rocklaw@aggman.com. Hope to hear from you soon.

An ALJ dismissed Dynatec Mining Corp.’s request for legal fees from MSHA under the Equal Access to Justice Act, finding that the contractor was not an “eligible” applicant when its net worth and number of employees was aggregated with those of its affiliates.
Dynatec had argued that the commission’s “aggregation” rule for EAJA petitions conflicts with the language of the EAJA and is unjust and contrary to the purposes of the law. But, in his July 10 decision, ALJ Richard W. Manning said he was “bound” by the commission’s aggregation requirement and added that Dynatec “must address these arguments to the commission.”
Dynatec’s attorney, Greg Ruffennach, told MSHN that his client will ask the commission to review the ALJ’s decision.
Manning noted that he did not reach the merits of the contractor’s EAJA application.
Dynatec is seeking more than $239,000 in legal fees and costs from MSHA in a case arising from MSHA’s decision to cite the contractor after the fatal collapse of a chute or “raise structure” at a former Magma Copper Co. mine (8 MSHN 167).

In its EAJA petition, Dynatec argued that MSHA’s enforcement actions against it were “unreasonable,” contending that it “prevailed” because 12 of 14 Sec. 104(d)(1) citations and orders were vacated and the agency’s total proposed penalty of $700,000 was eventually reduced to $60,000.
Four Magma miners were killed in the chute collapse which occurred in August 1993 at Magma’s Superior Mine, an underground copper mine located in Gila County, Ariz. Magma had hired Dynatec to construct the “865 raise” according to Magma’s design specifications. In its EAJA petition, Dynatec said the raise failed after Magma “overloaded and blasted it.”
The contractor claimed that MSHA’s enforcement strategy was not based on a reasonable assessment of the facts or a reasonable interpretation of the law, but was based on “the McAteer administration’s determination to win a record civil penalty assessment against Dynatec at any cost.”
Dynatec also complained that MSHA’s proposed $700,000 penalty was “roughly equivalent” to the company’s net worth at the time.

In a January decision, the commission upheld Manning’s finding that Dynatec committed two S&S and “unwarrantable” violations of Part 57 ground support and safe access standards. FMSHRC vacated six orders alleging separate violations of a ground condition examination rule (8 MSHN 58).
In his 1998 decision in the case, Manning had vacated one ground support charge and also vacated as “duplicative” five orders alleging inadequate examinations of the raise (5 MSHN 428).

Manning said that Dynatec’s EAJA case raises an issue of “first impression.” The EAJA limits recovery to prevailing companies with a net worth of less than $7 million and with fewer than 500 employees at the time the case started. There is no dispute that Dynatec, considered by itself, meets the $7 million/500 employees limit, the ALJ found. However, the commission’s EAJA regulations require the aggregation of the net worth and number of employees of “all” of a company’s affiliates in determining eligibility for an award.
The ALJ noted that Dynatec’s corporate parent owned all of the voting shares of the company when the case started and that, when its net worth is aggregated with Dynatec’s, the total net worth exceeds $7 million.
Dynatec argued that the EAJA does not mention or authorize the aggregation of affiliated companies and that the commission exceeded its powers when it adopted the rule. The contractor relied on a 1999 decision by the 6th U.S. Circuit Court of Appeals in Tri-State Steel Const. v. Herman, which held that the Occupational Safety and Health Review Commission erred in aggregating Tri-State’s net worth with that of its corporate parent.
Manning ruled that he did have “the authority to overturn or ignore a regulation duly promulgated by the commission.” He also noted that the Tri-State decision was issued before OSHRC officially adopted an aggregation rule.
Dynatec argued that aggregating it with its affiliates would be “unjust” because the contractor contested MSHA’s orders on its own behalf and it was not a “front” or a “sham” for an ineligible party that controlled the litigation.
The company also maintained that application of the commission’s aggregation rule will limit EAJA eligibility only to a “handful of Sec. 110(c) claimants and uniquely unaffiliated mining entities.”

Dynatec has appealed the commission’s upholding of two violations in the underlying case to the U.S. Court of Appeals for the D.C. Circuit (8 MSHN 105). The court has scheduled oral arguments for Feb. 7, 2002. The three-judge panel hearing the case consists of Circuit Judges Stephen F. Williams, David S. Tatel and Merrick Garland.

ALJ Jacqueline R. Bulluck vacated a combined Sec. 104(a)/Sec. 107(a) imminent danger order issued because the inspector claimed the mine’s general manager was not wearing “suitable protective footwear” when he lifted a 25- to 35-lb. belt idler.
Bulluck found that the general manager’s leather workboots provided adequate safety while he was accompanying the inspector, and she stressed that he “was not performing any work when he lifted the belt idler, but [was] illustrating a point” to the inspector, and “at all times maintained control of the [belt idler].” She also held that the inspector “abused his discretion” in issuing the imminent danger order.
The ALJ also noted that the inspection took place “in an emotionally charged environment” because of a “hotly contested” dispute over the adequacy of the workers’ footwear.
The case arose during a March 2000 inspection of Bilbrough Marble Division, Texas Architectural Aggregate’s Roper Quarry, surface limestone/dolomite mine and crushing operation located in Marble Falls, Texas.
When the inspector arrived at the site, he observed the operator of a Euclid haul truck wearing tennis shoes and another worker wearing cowboy boots. The inspector physically checked all of the employees’ footwear by touching them with his hand and foot and prohibited the workers’ entry to certain areas of the plant, unless they changed to steel-toed footwear.

When the general manager arrived at the mine in his leather workboots with leather reinforced toes, the MSHA inspector initially prohibited him from accompanying him on the inspection. But the inspector’s supervisor overrode him on the point during a cell phone conversation and authorized the general manager to accompany the inspector in his leather workboots.
During the inspection, the inspector pointed out areas where falling objects could cause foot injuries and inquired about a belt idler. While the general manager was explaining how a welder in steel-toed footwear would install the belt idler, he lifted the idler waist high to show how the task would be performed. The inspector then issued a combined Sec. 104(a) citation and Sec. 107(a) imminent danger order, alleging an S&S violation of protective footwear standard, §56.15003.
In vacating the citation, Bulluck discredited the inspector’s testimony that he was not agitated at the time of the inspection and credited the general manager’s testimony that his decision to lift the belt idler was “motivated by extreme frustration, was spontaneous and was not premeditated.” She also discredited the inspector’s testimony that he had specifically instructed the general manager not to pick up the idler.
“It is clear that MSHA determined [the general manager’s] footwear suitable for accompanying [the inspector] on inspection, consistent with its own policy that leather boots provide adequate safety under some circumstances,” Bulluck found. She added that the general manager “was not in an area or performing a task that would subject him to hazards that would cause foot injury.”
Vacating the imminent danger order, the ALJ found that the order “was issued under circumstances where there was no likelihood of injury and no degree of imminence necessitating [the general manager’s] withdrawal.” The manager was in control of the belt idler and the inspector acknowledged he was in no danger of dropping it, she stressed. The ALJ was “convinced that [the inspector’s] judgment was affected by the antagonistic atmosphere” during the inspection, and she concluded that he failed “to make a determination that the perceived hazard was impending.”

Ellen Smith is the owner of Legal Publication Services, Pittsford, N.Y., which publishes Mine Safety and Health News. Melanie Aclander is legal editor for Mine Safety and Health News.