December 2002
Meaningful MSHA/OSHA Conferences?
By Henry Chajet, Esq.
No, the title is not a joke. Conferences do not have to result in a rubber-stamp approval of the inspector’s violations. Below are some of the lessons learned from hundreds of conferences, particularly those involving high-risk violations (e.g. MSHA unwarrantable failures, OSHA willfuls or cases involving fatalities or other high visibility incidents).
Conferences are informal creations of MSHA and OSHA that provide a vehicle to avoid contests. They do not delay the date for filing contests, and a failure to timely contest (30 days for MSHA and 15 days for OSHA), results in an automatic final order, affirming the validity of the citations, orders, and penalties. Conference settlements are not an automatic denial of guilt or fault, even if the penalties are reduced to almost nothing. Payment, without effective exculpatory language, is an admission useable in related lawsuits or criminal proceedings.
OSHA’s process is a speedy and unforgiving time line. The citations and penalties are in the same document, not generally provided during the inspection, but must be served within six months, and originate at the regional or field office level. Contests are generally due within 15 days of the citation, and a conference doesn’t stay the need to contest.
MSHA citations are served by the inspector (usually during the inspection) and followed with a penalty (e.g. 90 days and sometime later) from the national Office of Assessments. Challenges to the delayed, proposed penalty permit challenges to the underlying citations (but not orders). But, MSHA mandates a conference request within 10 days of the citation.
Under either system, meaningful conferences require quick action and planning.
Don't Make it Worse
Occasionally, statements made or documents produced at a conference result in increased negligence or fault allegations that increase risks of higher or additional penalties and criminal investigations. A lack of understanding can lead to a statement like: “We knew about it, and we intended to fix it, but didn’t have time because the trucks were lined up on the highway for loading.” Can you imagine the thought process of an aggressive MSHA or OSHA manager listening to this plea?
In high-risk situations (e.g. fatality cases or other high-profile matters) management personnel directly involved in the incident should not participate in the conference. They are simply too tempting a target for difficult questions or may be tempted to shade the truth, creating a variety of potential felony charges, such as obstruction or conspiracy.
Be prepared
Understand the process and communicate that you share the safety goals of the MSHA/OSHA while presenting your case. Prepare and present information and documents that support your position, such as the following:
- Measurements that show protection by location;
- Alternative safety precautions in existence;
- Training that should have prevented the violation;
- Rules aimed at preventing the condition or practice;
- Safety disciplinary actions that show the company enforces the rules;
- Helpful witness statements from hourly employees;
- Photographs that show a different perspective than the one taken by the inspector; and
- Inspection records that show the condition did not exist earlier.
In high-risk situations, prepare a letter or memo that summarizes the helpful material. A summary can be a powerful tool that permits the MSHA/OSHA official to point to the strength of the company’s case in justifying (and “papering” the file) for favorable changes.
Get exculpatory language, particularlyin high-risk cases
Companies have settled and later become the subject of a criminal prosecution, received MSHA civil fines against managers, or seen the citations introduced in civil trials to support punitive damages. If you reach a deal at an MSHA/OSHA conference, the officials might offer their own version of a “no admission” clause. Sometimes they are adequate and sometimes not. If the stakes are high, seek counsel before agreeing to the settlement. A contest may be needed to protect company rights until language can be agreed to, but there are many settlement opportunities after the conference (with the Solicitor’s office), and we have never seen a conference offer disappear. To maintain a good relationship with the MSHA/OSHA settlement personnel, a clear communication should take place explaining that the lack of immediate settlement does not mean that the company does not desire settlement; only that time is needed to agree to acceptable language.
Let safety guide you
Like you, their personnel are committed to safety. If the conference officials believe that you share their goals — and you demonstrate it by results and actions — favorable results will be easier to achieve. Consider a presentation about your safety program, results, and/or recent improvements, training, and new programs. Seek help and request applicable training materials. Describe how you will reinforce rules prohibiting the alleged violations, even while denying that the citations are valid. For example, one of our favorite “programs to reduce injuries and repeat violations” is the “line out” talk that incorporates prevention of the conditions cited. At the conference, these discussions tell MSHA/OSHA that you are reacting in a pro-safety manner to the inspector’s concerns, even though you respectfully disagree with his conclusion.
Henry Chajet is a partner in the Washington, D.C. office of Patton Boggs LLP.
Federal Mine Safety and Health Review Commission
By Adele L. Abrams, Esq. CMSP
Eighth Circuit Affirms Discrimination Finding
Gabel Stone Co., Inc., struck out for the third time in challenging MSHA’s claim that it discriminated against a worker who notified MSHA about alleged unsafe conditions at the mine. The worker, who filed a confidential safety complaint, was terminated shortly after MSHA inspected the mine and issued eight citations. During the inspection, the mine owner repeatedly told MSHA personnel that he knew the identity of the complainant and planned to fire him. After initially telling MSHA that the worker quit, the owner testified that the termination was performance-based and claimed that the worker was not entitled to back pay because he enrolled in college full-time and did not make reasonable efforts to find suitable employment.
In Gabel Stone Co., Inc. v. FMSHRC, 2002 U.S. App. LEXIS 20978 (8th Cir., Oct. 7, 2002), the U.S. Court of Appeals held that the Federal Mine Safety and Health Review Commission and the Administrative Law Judge’s award in favor of the worker was supported by substantial evidence and should be affirmed. It agreed that the company’s stated reasons for firing the worker were pretextual, and that the miner was fired for engaging in protected activity.
With respect to the back-pay issues, the FMSHRC previously found that although the worker was a student, his evening classes did not preclude full-time employment and he did, in fact, subsequently find such a job which sufficed to satisfy the mitigation requirements. The Eighth Circuit agreed and noted that the company never introduced any evidence on the issue of mitigation of damages. In addition to back-pay relief, the ALJ and Commission held that a $5,000 MSHA civil penalty against the company was appropriate. This was not specifically addressed by the U.S. Court of Appeals.
Noise, Equipment, Electrical Citations Challenged By Quarry
ALJ Hodgdon recently reduced penalties for equipment, noise, and electrical violations from $2,562 to $1,559 for a small quarry in Missouri, after full adjudication of the six citations. In Bailey Quarries, Inc. (ALJ, Sept. 16, 2002), the judge found that the “action level” citation, issued under § 62.120 after sampling, indicated that a worker was exposed to an 88.2 dBA exposure as a time-weighted average (TWA), and a “noise dose” of 78.04 percent. Although MSHA’s permissible exposure limit is 90 dBA for an eight-hour TWA, mine operators must take certain actions once workers are exposed above the 85 dBA action level — including enrolling them in a hearing conservation program and offering hearing protection options. The ALJ held that the mine operator’s negligence was “low” rather than “moderate,” as MSHA had alleged. The S&S citation penalty was reduced from $399 to $100.
The judge upheld in full, S&S equipment violation penalties for inoperable backup alarms on mobile equipment, but reduced a guarding citation under § 56.14107(a), involving a fan/v-belt drive on a haul truck, from moderate negligence, S&S to low negligence, non-S&S, with a reduced penalty from $399 to $50. The judge also reduced the penalty for an S&S electrical citation under § 56.12032, which alleged that a cover plate on a motor termination box was unsecured, from $655 to $300. All of the standards cited in this case are on MSHA’s “Top 20” list of standards cited at surface stone mines. For a complete list of these standards, see http://www.msha.gov/STATS/Top20Viols/top20surfstone.htm.
Steel Supplier Gets EAJA Fees
Northern Illinois Steel Supply Co., a small company cited by MSHA for a violation of §56.15005 (failure to use fall protection) while delivering materials at a Vulcan Materials Co. mine in Illinois, prevailed in its challenge to MSHA jurisdiction when the U.S. Court of Appeals for the Seventh Circuit overturned the FMSHRC’s ruling in MSHA’s favor. In a recent development, MSHA has agreed to pay the company nearly $50,000 in costs and attorney fees under the Equal Access to Justice Act, 5 U.S.C. § 504 et seq., although it did not admit that its actions were “without substantial justification.”
The statutory test is “[w]hether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.” Parties who are eligible for EAJA claims include individuals whose net worth did not exceed $2,000,000 at the time the adversary adjudication was initiated, or businesses, associations, and organizations whose net worth did not exceed $7,000,000, and which did not have more than 500 employees at the time the litigation was initiated.
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.