November 2002

Federal Mine Safety and Health Review Commission

By Adele L. Abrams, Esq. CMSP

Darwin Stratton Penalized For Refusing Inspection
ALJ Manning assessed a penalty of $1,000 against Darwin Stratton & Son, Inc., a small Utah mine, for its ongoing refusal to permit an MSHA inspector to inspect its Rattlesnake Pit in Darwin Stratton & Son, Inc. (ALJ Manning, Aug. 15, 2002). Prior to the decision, the employer responded to a “show cause” order, stating: “We do not feel that FMSHRC can be or will be fair and impartial in the hearing [of the docket regarding the mine]. The former alleged Rattlesnake [Pit] situs NEVER was a mine or pit and NEVER was under the jurisdiction of MSHA… your March 19, 2002, ORDERED threat of default and penalty (punishment) continues the process of force and fear by FMSHRC, MSHA, and the Office of the Solicitor.” The operator also sought the recusal of Judge David Sam, who sits on the U.S. District Court (D-Utah) and had entered an injunction against the company for its refusal to permit entry to MSHA.
The mine was inspected in April 2000, following a fatal accident in which an employee became entangled in a moving conveyor belt tail-pulley. MSHA conducted an investigation and issued a number of citations related to the accident. In October 2000, at a hearing that Darwin Stratton did not attend, the judge found that the Rattlesnake Pit was subject to MSHA jurisdiction because it performed milling operations at the site. In November 2000, MSHA issued a citation under Section 103(a) of the Mine Act for failure to permit inspection of the site. ALJ Manning imposed the $1,000 penalty, stating that “An operator cannot unilaterally nullify MSHA jurisdiction.” Although the mine operator claimed the site was not closed, it waived its right to present evidence on the issue by failing to appear at the hearing.
MSHA Can Stay Civil

Proceeding Where Criminal Charges Pending
A mine operator under review for criminal prosecution arising from alleged MSHA violations failed to get a stay of its civil proceeding lifted. The Secretary of Labor had referred the matter to the U.S. Attorney’s office for criminal investigation, which was still in progress. Ruling in Black Beauty Coal Co. (ALJ Hodgdon, Aug. 22, 2002), the judge rejected the mine operator’s claim that its defense would be prejudiced by further delay because three employees who witnessed the inspection at issue no longer work for the company.
The Commission has held that, in considering whether to lift a stay where a possibility of criminal prosecution exists, it should consider: (1) the commonality of evidence in the civil and criminal matters; (2) the timing of the stay request; (3) prejudice to the litigants; (4) efficient use of agency resources; and (5) the public interest. Buck Creek Coal Inc. (FMSHRC 1995). It is proper to stay civil proceedings if they “churn over the same evidentiary material” as the criminal case.
The judge found that the mine operator failed to show that it could no longer locate its witnesses or otherwise memorialize their testimony, and so it failed to demonstrate prejudice. In addition, ALJ Hodgdon noted that if the civil proceeding went forth, witnesses subject to criminal prosecution would likely asset their privilege against self-incrimination, which would hinder the efficient use of agency resources. Although the judge agreed that expeditious determination of where penalties are warranted is in the public interest, this is not sufficient to lift the stay.

Harness/Lanyard Not Solution To “Safe Access” Problems
MSHA’s metal/nonmetal “safe access” rule — one of the most often-cited standards due to its subjective nature — was litigated once again in Lattimore Materials Co., L.P. (ALJ Schroeder, Sept. 11, 2002). MSHA alleged that the rule requiring mine operators to provide “safe access” to employees was violated in connection with a task involving lubrication of roller bearings at a sand and gravel plant in Texas. At the time of the alleged violation, an employee climbed into the conveyor’s tower structure, while wearing a safety harness and lanyard, in order to grease the bearings. He walked on steel beams of the structure and had to use both hands to apply the grease gun, forcing him to rely on the fall protection for support. However, the beams had numerous points on which to clip the lanyard while working or moving.
During the inspection, the MSHA officer was told that, prior to the inspection, the mine had identified the hazards associated with this task and had ordered rubber hoses that could be installed on the pulley bearings, thereby allowing lubrication to be performed from the ground, but this system was not yet in use. The inspector claimed that he was not able to identify any other method of pulley bearing lubrication in use at the mine to eliminate the fall hazard and that the plant manager did not provide an explanation of how it could be done safely.
ALJ Shroeder found that, without rebuttal, the testimony of Inspector Fred Gatewood established a violation of the standard. The mine operator failed to present testimony to support its argument that, prior to the inspection, workers performed the lubrication task using an extension ladder as a work platform. No injury occurred, but the judge held that the existing protections of a harness and lanyard were “less than fully desirable.” He reduced the proposed civil penalty from $207 to $100.

“SEC” Argument Insufficient To Defeat MSHA Jurisdiction
A novel jurisdictional argument was offered against MSHA’s authority assertion recently in Original Sixteen To One Mine, Inc. (ALJ Cetti, Sept. 4, 2002). The mine operator moved to dismiss MSHA’s eight citations, claiming that the Securities and Exchange Commission (SEC) had determined that its mining operator had insufficient reserves to hold itself out as a mine to shareholders. The company argued that, if the operation could not be deemed a mine for SEC purposes, then it could not be considered a mine under the Mine Act, 30 U.S.C. §801. Judge Cetti quickly disposed of the argument, noting that the SEC does not purport to regulate the health and safety of miners, and whatever purpose the SEC has in defining a “mine,” it is unrelated to safety and health purposes. Since the facility was engaged in ore extraction and had nine miners employed in such activities, it fell within the ambit of the Mine Act. After its jurisdictional motion was denied, the operator withdrew its contest of three of the 11 citations that were issued under 30 CFR Parts 56 and 57. After considering testimony concerning the five citations that remained under contest, the judge imposed a total civil penalty of $651 for the 11 violations.

Judge Cetti affirmed a violation of
§56.9306, which requires warning devices to be installed in advance of areas with restricted clearance. This occurred in an area where a motor man operates a locomotive near an ore chute, and would have to duck to avoid hitting his head because clearance was only 55 inches above the rail. A $55 penalty was imposed.
A second citation, alleging a violation of §57.3401, claimed that an area of unsupported rock beside a slusher had not been tested by a supervisor or designated person prior to commencing work in the area, presenting a possible ground fall hazard. The inspector claimed that the slusher’s vibration made it necessary to test the area, which had horizontal cracks visible. The citation was affirmed as non-S&S, with a $55 penalty.
The citation alleged an S&S violation of §57.3360, claiming that ground support was not installed and that bowed and split timbers and cracked pillars indicated that the wall was taking weight. Other timbers showed signs of rotting out or crushing. The judge agreed that the violation was S&S because it was reasonably likely that a roof collapse could occur and kill the two miners working in the area. He assessed a $131 penalty.
The next citation alleged a violation of §57.16005 and stated that an unsecured acetylene cylinder was found in the work area. Although a violation occurred, the judge noted that exposure was limited and negligence was low, so he imposed a $25 penalty.
MSHA also issued an electrical citation under §57.12032, claiming that a cover plate on the hot water heater in the storeroom near the office was not in place. The operator responded that the top screw had worked loose and no one had entered the area since the plate fell off. The judge agreed that negligence was “low” but maintained the $55 penalty for the non-S&S citation. The remaining uncontested citations were all non-S&S, with $55 civil penalties.

Employers Can’t Seek Relief from U.S. District Court
The administrative and judicial review procedures of the Mine Act came under scrutiny in the U.S. Court of Appeals, D.C. Circuit this year when an employer challenged OSHA’s data collection initiative as unlawful. Data collection on employment and injury/illness incidents was used to target companies for OSHA inspections. The employer argued that OSHA lacked a regulation requiring employers to create and maintain such employment data (although it agreed that the injury/illness data request was appropriate) and therefore the initiative was invalid.
In Strum, Ruger & Co. v. Chao (19 OSHC 1969, August 23, 2002), the D.C. Circuit affirmed a U.S. District Court’s ruling that the District Court lacks subject matter jurisdiction over employer complaints. Noting the analogous provisions in the Mine Act, it decreed that the company must follow the review procedures set forth in the OSH Act and go through the review commission before heading to federal court. The only exception involves challenges to the validity of formal regulations issued under the Administrative Procedure Act, as occurred in a recent challenge to regulations issued under the Black Lung Benefits Act, National Mining Ass’n v. Dep’t of Labor, 292 F.3d 849 (D.C. Cir. 2002) (affirming U.S. District Court jurisdiction over a generic challenge to the retroactivity of those regulations).
Although Strum, Ruger & Co. involved challenge to an OSHA rule, the decision provides a good overview of Mine Act procedures, as analyzed by the U.S. Supreme Court in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). In its de novo review, the D.C. Circuit noted that the court must look at whether the employer’s claim is one that falls within review commission expertise; if so, it precludes U.S. District Court jurisdiction. Moreover, the review commission has addressed prior constitutional claims, and the U.S. Court of Appeals can still hear an employer’s complaint after the review commission renders its decision. The Mine Act contains only two provisions which empower the Secretary to seek assistance from the U.S. District Court (to enjoin habitual violations of safety and health standards, and to coerce payment of civil penalties), and mine operators have no corresponding rights to seek relief in the U.S. District Court. They must complain to the FMSHRC, and then to the U.S. Court of Appeals, if necessary. The Court of Appeals’ review of Commission rulings requires affirmation of the findings of fact if supported by substantial evidence. Neither the Mine Act nor the OSH Act distinguishes between pre-and post-enforcement challenges.

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.

MSHA Settlement Prompts Reopening of Diesel Rule

By Adele L. Abrams, Esq. CMSP

On July 15, 2002, members of the mining industry executed a partial settlement agreement with the Mine Safety and Health Administration (MSHA). They had sued MSHA concerning its final rule establishing regulations for metal/nonmetal mines that use diesel-powered equipment underground.
The settlement permitted MSHA to proceed with implementing the interim concentration limit for diesel particulate matter (DPM) of 400 mg/m3 (total carbon) effective July 20, 2002, without further legal challenge. However, from July 20, 2002 through July 19, 2003, MSHA will provide operators with compliance assistance.
In the July 18 Federal Register notice staying the effective date of some DPM provisions, MSHA agreed to the following:

• Holding compliance assistance meetings throughout the country;
• Providing assistance in how to conduct DPM sampling;
• Providing a compliance guide;
• Inventorying existing underground diesel-powered equipment;
• Assisting in developing a strategy to control DPM emissions;
• Providing information on feasible DPM controls; and,
• Taking baseline samples at each underground mine covered by the standard.

Under the settlement agreement, MSHA’s policy for enforcement of the interim concentration limit is the same as its long-standing enforcement policy for the hierarchy of controls: mine operators may supplement feasible engineering and administrative controls with respiratory protection only when controls do not reduce DPM to the required limit, or are infeasible, or do not produce significant reductions in DPM exposures. MSHA views work practices as administrative controls under the DPM standard. All feasible controls must be implemented first before resorting to respiratory protection.
Until July 19, 2003, mine operators will not be cited for exposures exceeding the interim limit of 400 mg/m3 of total carbon, provided they take good-faith steps to develop and implement a written compliance strategy and cooperate with MSHA. MSHA will issue a noncompliance citation for exceeding the interim concentration limit if the Agency believes that an operator is not acting in good faith. These citations will carry monetary civil penalties. After July 19, 2003, MSHA will issue citations for violations associated with the interim limit, regardless of good faith efforts to comply.

Compliance guidance
The substance of the settlement is set forth in MSHA Program Information Bulletin No. P02-08 (Aug. 12, 2002) and in a draft “Q&A” compliance guide available on MSHA’s website (www.msha.gov).
The guidance also clarifies that employees of independent contractors whose diesel-powered vehicles regularly enter underground mines will be covered by MSHA as part of that mine’s diesel fleet and be subject to the standard’s requirements. However, MSHA does not intend to cover independent contractors who come into the mine infrequently or on an irregular basis, nor will delivery and customer vehicles be covered by the standard.
In addition, a number of provisions of the DPM rule are now in full effect. Mine operators must do the following:

• Use only low-sulfur (0.05 percent or less) diesel fuel;
• Use only EPA-registered fuel additives;
• Maintain approved diesel engines in approved condition, maintain the emission related components of non-approved engines in accordance with manufacturer specifications, and maintain any installed emission control devices in effective operating condition;
• Ensure that a person authorized by the mine operator examines tagged equipment before the end of the next shift during which a qualified mechanic is scheduled to work;
• Ensure that persons authorized to maintain diesel equipment are qualified by virtue of training or experience for the maintenance tasks they perform;
• Ensure that diesel engines added to the inventory of an underground metal or nonmetal mine are either an engine approved by MSHA under Part 7 or Part 36, or an engine meeting certain EPA particulate matter emission specifications;
• Provide annual training to miners on DPM hazards and controls; and
• Maintain DPM-related records.

MSHA seeks comments
MSHA subsequently published an advance notice of proposed rulemaking in the Sept. 25 Federal Register requesting comment on amendment of some DPM provisions. Comments are due by Nov. 25. The provisions at issue include revision of the concentration limit for DPM, compliance determinations, and requirements of the DPM control plan. MSHA also seeks input on the availability and efficacy of control technology and the cost implications of compliance with the current DPM standard.
MSHA seeks to change the surrogate of DPM from total carbon to elemental carbon for both the interim and final concentration limits and to use a single personal sample of a miner’s exposure as the basis for all compliance determinations. It will also consider allowing operators to supplement engineering and administration control methods with use of personal protective equipment where controls do not reduce the concentration of DPM to the required limit, are not feasible, or would not produce significant reductions in DPM exposures.
Comments can be submitted electronically to comments@msha.gov or by fax to 202-693-9441.

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.