September 2001
Regulations
Rock Law--When Contesting "Imminent Danger" Order, the Clock is Ticking
Federal Mine Safety and Health Review Commission
When Contesting “Imminent Danger” Orders, the Clock is Ticking
By Cole Wist
At the risk of sounding like a stuffy law professor, and at the risk
of making readers feel like they have (unfortunately) stepped into an
episode of “The Twilight Zone” and become first year law students,
let me pose the following hypothetical. An MSHA inspector comes to your
property. After examination of ground conditions on a high wall, the inspector
cites your facility under section 104(a) of the Mine Act for violation
of 30 CFR 56.3131 (“[l]oose or unconsolidated material shall be sloped
to the angle of repose or stripped back for at least 10 ft. from the top
of the pit or quarry wall.”). The citation is categorized as S&S
and alleges moderate negligence. To complicate matters, the inspector
designates the situation as posing an “imminent danger” to miners
and issues an order under section 107(a) of the Mine Act. Despite your
strong disagreement with the inspector, the 107(a) order requires that
you remove affected miners from the area and abate the alleged hazard.
You intend to contest the citation and order, but fail to do so within
30 days. Instead, you decide to “tee up” your arguments in a
contest of the penalty assessment, which arrives months later. You timely
contest the penalty assessment. Now, as Regis would say, here’s your
$32,000 question: Can you contest the 107(a) order?
The answer, which may come as a surprise, is no. When an operator wishes
to contest the issuance of a 107(a) order, the operator must do so within
30 days after the order is received. If a 107(a) order is not challenged
within this time period, it becomes a final order of the Mine Safety and
Health Review Commission.
The reason for this is rather straightforward. The brevity of section
107 procedures is a direct result of the different purposes of sections
104 and 107 of the Mine Act. Section 104 provides for the assessment of
penalties for violations of the Mine Act in order to force operators into
compliance with the Mine Act and MSHA’s regulations. Section 107,
on the other hand, is designed to protect miners by giving an inspector
the authority to withdraw miners from a work area when their safety is
compromised. This is why a 107(a) order need not allege a violation of
a mandatory safety standard. This is also why there is no section of the
Mine Act which provides for the assessment of a penalty for a 107(a) order,
as well as why the Mine Act specifically provides that the issuance of
a 107(a) order does not preclude the issuance of a citation under section
104.
The practical effect on your operation is simple. Don’t delay moving
on an imminent danger order that you believe is unfounded. Your failure
to timely contest could negatively impact your ability to argue that future
107(a) orders issued under similar factual circumstances are suspect.
Further, an unchallenged 107(a) order becomes a final order for purposes
of a compensation assessment under section 111 of the Mine Act (which
deals with entitlement of miners to be compensated when a mine is idled
due to an order issued under sections 104 or 107).
Contesting any order or citation requires careful analysis and consideration
of various factors including effects on any or all of the following: safety
and future enforcement, site costs, company-wide costs, worker’s
compensation, potential for tort liability and employee relations. Further,
in this context, because all imminent danger orders are examined to determine
whether a special investigation should be conducted, the possibility of
civil or criminal penalties against the company or individuals should
be considered as well. Above all else, never forget that the clock is
ticking.
Cole Wist (cwist@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.
Federal Mine Safety and Health Review Commission
By Ellen Smith and Melanie Aclander
FMSHRC Vacates ALJ’s Penalty Assessment in Tire Inflation Fatality Case
The Federal Mine Safety and Health Review Commission held that ALJ Gary
Melick erred in assessing a $4,000 civil penalty against Douglas R. Rushford
Trucking Co., in a case arising from a fatal accident.
MSHA is seeking a $25,000 penalty in the case and appealed the ALJ’s
penalty assessment on remand as “flawed.” The agency objected
to the ALJ’s reduction of the level of the operator’s negligence
because of its “self-imposed ignorance” of MSHA regulations.
Agreeing with the agency that the ALJ abused his discretion, the commission
sent the case back for the assessment of a new penalty amount.
Case Arose from 1998 Fatality
The fatal accident occurred in August 1998 at Rushford’s Seymour
Road Pit. When an employee was attempting to inflate a tire on a fuel
truck, the wheel rim exploded and struck him in the head, causing fatal
injuries. The victim was not using a stand-off inflation device as required
by tire repair standard §56.14104(b)(2).
In his initial decision in the case in January 2000, the ALJ ruled that
Rushford committed an S&S and “unwarrantable” violation
of the standard and assessed a $3,000 penalty. Melick found that the violation
resulted from “gross” negligence because “Rushford had
never bothered to obtain a copy of” MSHA’s standards, a stand-off
inflation device was not available at the mine and the mine owner “did
not even know what a stand-off inflation device was” (7 MSHN 73).
In a May 2000 ruling, the commission sent the penalty issue back to the
ALJ, ordering him to explain his “substantial reduction” in
the penalty proposed by MSHA (7 MSHN 253).
In his September 2000 decision on remand, Melick increased his penalty
assessment to $4,000, but this time stated that Rushford’s “self-imposed
ignorance of the…standard” made the violation “at least
arguabl[y]…not the result of unwarrantable failure” (7 MSHN
420).
Case Before FMSHRC For Second Time
Considering the case for the second time, the commission said Melick
erred in backing off from his initial finding of “gross negligence”—which
FMSHRC said was “the law of the case.”
Also, commission precedent makes it clear that “self-imposed ignorance”
does not reduce an operator’s negligence, the panel said.
The commission found “Rushford’s alleged ignorance about a protective
device as well known as stand-off inflation equipment, which is ubiquitous
in any industry working with split rim truck tires, truly remarkable and
unfortunate.”
“For the benefit of the entire mining community, it is important
to emphasize that, in this case, for the lack of a common and inexpensive
safety device, a miner died,” FMSHRC concluded.
commission agrees to review ‘aggregation’ in dynatec case
The commission has agreed to review an ALJ’s denial of Equal Access
to Justice Act fees to Dynatec Mining Corp.
Applying the commission’s “aggregation” rule, ALJ Richard
W. Manning denied Dynatec’s request for legal fees, finding that
the contractor was not an “eligible” applicant when its net
worth and number of employees were aggregated with those of its affiliates
(8 MSHN 329).
The EAJA limits recovery of fees 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. 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.
In its petition for review, Dynatec contended that the commission’s
aggregation rule “substantively changes” the EAJA’s eligibility
requirements and that the commission exceeded its powers when it adopted
the rule.
Dynatec also argued that the aggregation rule “effectively prevents
widespread exposure of MSHA to EAJA actions” and “is contrary
to the ‘significant’ purpose of the EAJA in ‘deterring
the unjustified action in the first place.’”
Even if the rule is lawful, it does not require the aggregation of affiliates
where “such treatment would be unjust and contrary to the purpose
of the [EAJ] Act,” Dynatec maintained. The contractor stressed that
it—and not its affiliates—“directed, controlled and financed
the civil penalty proceeding.”
Company Seeking More Than $239,000
Dynatec is seeking more than $239,000 in legal fees and costs from MSHA
in a case arising from the agency’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.
Manning’s decision held that Dynatec was not an “eligible”
applicant, and he did not reach the merits of the contractor’s EAJA
application.
Dynatec’s petition for review was granted on August 16 by then-Chairman
Mary Lu Jordan and Commissioners James C. Riley, Theodore F. Verheggen,
and Robert H. Beatty Jr.
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.