September 2002

MSHA Walks the Neighborhood “Beat”

Exercise caution during MSHA’s community policing visits

By Hugh Thatcher

In the 1980s, police departments across the United States focused on “community policing,” which was designed, in theory, to provide informal police intervention in communities. The goal was to prevent problematic situations from escalating to the level of criminal conduct, and thus officers once again walked the “beat,” knocked on doors, mediated disputes, and tried to become a part of the communities that they were assigned to serve and protect.
Lately, mine operators have been receiving letters from MSHA which evoke images of community policing (see Figure 1).

These letters can be interpreted to suggest that MSHA wants safer mines, without necessarily increasing enforcement levels. Such an approach would be welcome. And, practically speaking, we have advised our clients to work with MSHA and to respond to these letters, with great success. However, after an accident, these letters can also be the basis for criminal investigations or a plaintiff’s lawyer dream come true, if a proper response has not been initiated and documented.
Unfortunately, major mining accidents like that at Jim Walters in Alabama in 2001, and the more recent (and miraculous) event in Pennsylvania, may bring increased political pressure to bear upon MSHA regarding formal enforcement. As a result, there are many things that need to be carefully considered when an MSHA inspector walks the neighborhood “beat.”
First, just because MSHA is engaging operators on health and safety issues doesn’t mean that MSHA will stick with informal cooperation; in fact the statute requires enforcement whenever an inspector “believes” a violation took place and increasing levels of enforcement as negligence and gravity increase. A police officer, once invited inside a home by the occupant to “discuss” a dispute with the neighbors, may legitimately seize a marijuana cigarette and make an arrest if it is in the officer’s plain view, because the officer is legitimately on the premises.
Similarly, if MSHA learns of serious safety violations in the course of “discussing” the operator’s safety record with the operator, there is no reason why MSHA will not immediately issue citations and orders. More broadly, any information that MSHA gathers through the informal discussion process may be used by MSHA in a formal enforcement proceeding. Discussions, therefore, benefit from a risk management approach of not admitting knowledge of violative conditions, while being totally truthful to avoid any implications of interference or obstruction. For example, the question, “How long have you known about it?” is a set up for a Section 110( c ) charge. It can be met with a truthful response that avoids harmful admissions: “I’d rather not discuss that but I’d like to describe our new program to you.”
Second, not responding to the MSHA letter may trigger increased scrutiny and certainly will provide evidence for a plaintiff’s lawyer that the operator was placed on formal notice of safety risks and ignored them — supporting a claim for punitive damages for alleged willful conduct outside workers compensation. Although it is unclear whether MSHA has the ability to force an operator to participate in a discussion as requested in the letter, responding to the letter may be exactly the correct approach.
For example, in community policing, if a resident slams the door in the face of the officer who has come to discuss a dispute with the neighbors, the officer may call for backup or for his watch commander to investigate a “suspicious” response. However, response from an operator must be cautious because any information MSHA receives may be used in formal enforcement mechanisms. Operators must keep in mind that MSHA’s statutory authority is quite broad, and MSHA’s informal letter may be used as a precursor to Section 104(e) Pattern of S&S Violations, leading to a series of closure orders, or Section 110(c) penalties against individuals.
In short, MSHA’s genuine attempt to resolve safety and health issues through informal means is a good thing. However, like any government agency, MSHA is subject to outside pressures. If these are kept in mind when an operator interacts with MSHA in an informal setting, then a successful informal resolution may be achieved without unnecessarily exposing the operator to the same outside pressures that affect MSHA.
Producers may want to establish citation reduction programs and conduct training aimed at creating a positive response to MSHA initiatives and routine, but repeat enforcement. Such programs create documentary evidence of good faith efforts to rebut future potential adverse use of MSHA’s letters and citations. Programs can range from simple items, like line out procedures stressing prevention for the five leading causes of violations, or include more complicated procedures like contractor control programs. Operators have the flexibility to design a response based on their needs and resources, but we believe a proactive response is essential.

Hugh Thatcher is an associate in the Denver office of Patton Boggs LLP.

FMSHRC

Federal Mine Safety and Health Review Commission

By Adele L. Abrams, Esq. CMSP

MSHA Jurisdiction Over Cement Plant Confirmed
A serious accident at a Colorado cement plant operated by Southdown, Inc., prompted the Federal Mine Safety & Health Review Commission (FMSHRC) to reconfirm that MSHA has jurisdiction to enforce its regulations over construction contractors at such facilities. The Commission also rejected claims that Congress’ delegation of authority to the Secretary to construe “milling” as mining was an unconstitutional delegation of legislative power, and affirmed ALJ Manning’s findings that all three citations/orders issued were valid.
The case involved two citations and one order, two of which were designated as Section 104(d) “unwarrantable failures” to comply, issued to the contractor after one of his employees climbed onto an aerial work platform railing and fell approximately 70 ft. Although the worker survived, his leg had to be amputated. The work was being conducted in a partially completed baghouse, and the completed parts were bridged by a breezeway but there were no railings or barriers at the openings. The injured worker had worn a safety belt and line, but unhooked it before attempting to climb over the aerial work platform rail.
The contractor received a Section 104(d) citation for the unguarded openings, which MSHA classified as presenting a fall hazard in violation of
§ 56.11012. A Section 104(d) order was issued for failure to provide safe access pursuant to § 56.11001. A third, moderate negligence S&S citation was written for failure to tie off before transferring from the man basket to the breezeway, under § 56.15005. The ALJ affirmed all three citations/order and imposed a total of $42,500 in penalties. MSHA had originally proposed a total assessment of $87,000. The contractor appealed all findings concerning the alleged violations, as well as MSHA’s claim of jurisdiction.
In Watkins Engineers & Constructors (Commission, July 23, 2002), all three members of the FMSHRC agreed that the OSHA-MSHA Interagency memorandum of understanding clearly delineated MSHA’s authority at cement operations.
In addition, the Commissioners agreed that the “milling” processes undertaken at the plant also supported a ruling for the agency. It noted that, although Appendix A of the OSHA-MSHA Agreement defines milling as requiring “separation of one or more valuable desired constituents of the crude from the undesirable contaminants with which it is associated” and that such separation did not occur at Southdown, Section B(6) of the Interagency Agreement does not place any such restrictions on the kinds of cement plants within MSHA’s jurisdiction. Moreover, the Commission ruled that the Secretary’s interpretation of “milling” was consistent with the general usage of the term within the mining industry and outside of that industry. Therefore, the term includes “processes such as grinding and crushing . . . separation of waste from valuable materials is not an essential component of milling.”
With respect to the Section 104(d) citation, the FMSHRC rejected the contractor’s claim that the breezeway was not a “travelway” within the meaning of
§ 56.11012, finding that testimony before the ALJ demonstrated that the passage was in fact the designated way for accessing the baghouse and that it was not protected by railings, barriers, or other guards. The contractor’s actions constituted aggravated conduct because the cited condition was obvious, a number of employees accessed the area several times per day, and the condition had existed for two days.
Similarly, the Commission upheld the “unwarrantable” finding with respect to the “safe access” order because the contractor failed to provide and to maintain safe access to this working area. Although a longer part of the aerial work platform would have bridged the opening completely, the contractor did not instruct employees on this safe access and the short end of the basket was regularly used. Although the contractor claimed that it lacked knowledge of the practice, this defense could not prevent liability under the Mine Act and, the Commission wrote, the claim showed that Watkins took inadequate steps to determine whether the procedure for safe access was implemented.
The Commission agreed that the violation of § 56.15005 was appropriately classified as “moderate” negligence, but rejected the contractor’s claim that the standard simply required safety belts and lines to be worn, rather than requiring the lines to be attached to an anchor point. The FMSHRC observed that the standard has been consistently interpreted to require the safety lines to be worn in a safe and proper manner in the vicinity of a fall hazard.

Third Time Is Not The Charm For Rushford
In its third time before the FMSHRC, Douglas R. Rushford Trucking saw the Commission overrule ALJ Melick’s significant penalty reduction from the proposed $25,000 to $4,000. The Commission decided to impose a $15,000 penalty itself, rather than remand the case to the ALJ for the third time. The case of Douglas R. Rushford Trucking (Commission, July 22, 2002) involved a fatal injury to a Rushford employee, which occurred while he was attempting to inflate a truck tire without a stand-off device. MSHA cited the company under § 56.14104(b)(2), a standard that requires use of a stand-off inflation device to permit persons to stand outside the potential trajectory of wheel components.
In the initial ALJ ruling, the judge upheld the “unwarrantable failure” findings for the citation but reduced the penalty to $3,000. In its first review, the Commission found that the ALJ failed to appropriately consider the statutory penalty criteria. In the first and second remands, the ALJ increased the penalty to $4,000 and discussed each of the penalty criteria in Section 110(i) of the Mine Act. However, in the first remand decision, the judge claimed that the Commission’s review of the Secretary’s “history of violations” claim lacked “legal authority” and he also found that there were mitigating factors (the operator’s “self-imposed ignorance”) that reduced the negligence of the company.
On review for the second time, the Commission vacated the judge’s penalty assessment because he erred in his analysis of the negligence criterion; it held that the “unwarrantable failure” and “gross negligence” findings of the initial ruling were the law of the case and could not be retracted upon remand. Undeterred, the ALJ again imposed a $4,000 penalty in the second remand of the case and stated that, while there was “gross negligence,” it was not at the “highest end” of the negligence spectrum.
In its latest ruling, the Commission harshly criticized ALJ Melick’s failure to adhere to the FMSHRC’s remand instructions. Apparently miffed at the judge’s refusal to acknowledge legal errors with respect to the negligence characterization, and noting the time and expense borne by the parties in having additional rounds of proceedings, the Commission exercised its authority to assess an “appropriate” penalty of $15,000, rather than remanding the matter back to the ALJ. It was unclear at press time whether either party would seek “round four” by appealing the FMSHRC ruling to the U.S. Court of Appeals.

Due Process/Notice Issues Considered In Coal Case
In a recent ruling, Lodestar Energy, Inc. (Commission, July 25, 2002), the FMSHRC restated its position on what constitutes due process and fair notice when an inspector cites conditions that had not previously been considered violations during other mine site inspections. The case involved weekly inspections of entries in an underground coal mine, pursuant to § 75.364(b)(1). The mine operator had not been regularly inspecting the No. 1 entry because that entry and the No. 2 entry “constituted a set of entries” and only one needed to be inspected. Although MSHA had inspected the mine for 17 consecutive visits without requiring No. 1 entry to be examined under the standard, the citation was affirmed by ALJ Hodgdon and a $45 penalty assessed.
The mine operator argued that its interpretation of the standard was correct and that the two entries were not separate air courses. Moreover, it argued that because it was not previously cited, this demonstrated that a “reasonably prudent person familiar with the mining industry and the protective purposes of the standard would not have recognized the Secretary’s new interpretation of the rule.” The Secretary countered by citing the preamble of § 75.301, which defines air course, and maintaining that the entries were separate because they were separated by more than 600 ft.
On review, the Commission noted that this was an ambiguous standard, but that the courts normally will defer to the Secretary’s reasonable interpretation, especially where it is harmonized with and furthers the objectives of the Mine Act. Here, the FMSHRC found that the Secretary was reasonable and that supporting the mine operator’s reading of the rule could lead to the absurd result of only requiring one entry in an entire mine to be examined regularly.
With respect to MSHA’s long-standing failure to cite this condition, the Commission observed that the “fair notice” issue requires analysis of a wide variety of factors, including: the text of the regulation, its placement in the overall regulatory scheme, its regulatory history, the consistency of the agency’s enforcement, and whether MSHA had published notices informing the regulated community with ascertainable certainty of its interpretation of the standard in question.
Because the ALJ failed to address the adequacy of notice in his initial decision, Commissioners Verheggen and Beatty remanded the matter for consideration of all factors as well as to record evidence bearing on notice pursuant to Commission precedent. In a dissent, Commissioner Jordan wrote that she would affirm the judge based on the plain meaning of the regulation and that she found the operator had adequate notice of its provisions.

FMSHRC Shakeup
July 26, 2002, Commission Chairman Ted Verheggen resigned in order to accept the position of Legislative Counsel in the Washington, D.C., office of The Dow Chemical Company. Because Commissioner James Riley’s term expired earlier this year, and Commissioner Marc Marks resigned in 2001, the Commission was left with only two Commissioners at the end of July 2002. Moreover, Commissioner Jordan’s term was also set to expire August 2002, leaving Robert Beatty as the sole Commissioner.
At press time, two nominations were pending but had not gained Senate approval. Michael F. Duffy, counsel for the National Mining Association, Washington, D.C., was nominated on April 22, 2002, as Commissioner for a term expiring Aug. 30, 2006. Stanley C. Suboleski of Virginia was nominated on March 22, 2002, as Commissioner, also for a term expiring Aug. 30, 2006. No individuals had been nominated to fill the third vacancy.
Commissioners are appointed by the President and confirmed by the Senate. Review of an ALJ decision by the Commission is not guaranteed, but requires the affirmative vote of two Commissioners. Therefore, unless President Bush makes recess appointments promptly, the Commission cannot accept any new Petitions for Review, nor can it rule on pending cases.

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.