November 25, 2013
A recent decision by Administrative Law Judge Manning demonstrates that even where the mine operator has paid the fine for an unwarrantable failure (Section 104(d)) citation or order, it is still possible for the agent of management who was the target of “aggravated conduct” allegations to successfully fight the charges.
In his October 28, 2013, ruling in Secretary of Labor v. Cole Pilling, employed by TM Crushing, the judge vacated two Section 110(c) penalties that would have totaled $5,400.
The October 2013 decision was a long time coming: the citation and order at issue were written back in 2010, when TM Crushing was issued the alleged violations concerning defects involving mobile equipment.
The first citation alleged a violation of 30 CFR 56.14100(b), claiming that the operator failed to correct, in a timely manner, a “soft” left brake, missing steps and a broken backup alarm on a loader. The second item at issue was a Section 104(d)(1) order, for an alleged violation of 56.14101(a)(2), in which the inspector claimed that the parking brake on a haul truck that was in use on the day of inspection did not hold the empty vehicle when parked on the steepest grade traveled.
The Mining Safety and Health Administration (MSHA) conducted a special investigation against Cole Pilling, the former pit manager for the company, in connection with the citation and order, and proposed two Section 110(c) penalties against him, which were contested. The Secretary alleged that because Pilling was “on notice of problems with the equipment generally,” he had knowledge of the haul truck’s ineffective parking brake and the problems with the loader.
Eventually, nearly $15,000 in civil penalties was proposed against the mine operator and these were paid in full and not contested. Therefore, although some evidence was presented by Pilling to show there was not an underlying violation, this was discounted by the judge because the company did not contest the fact of violation. Consequently, the focus of the hearing was on the actual or imputed knowledge of violation with respect to the manager.
After considering Pilling’s testimony and that of the inspector, ALJ Manning found that “a history of varied conditions upon various pieces of equipment does not put an operator’s agents on notice of every violation that may occur.”
The judge credited testimony that Pilling had used his general knowledge to attempt to address the problems at the mine. He performed frequent repairs, pushed the owners to purchase better equipment and examined equipment himself. There was also a mechanic at the mine on nearly a daily basis repairing equipment, much of which was quite old.
The judge found that Pilling could not prevent the cited conditions from occurring or predict what problems might occur next, if any.
While MSHA claimed “aggravated conduct” by the manager for failing to keep all equipment defect-free, the judge found that Pilling used best efforts to address the equipment risks, was not “willfully ignorant” of the conditions and did not have actual knowledge (or reason to know) of the cited conditions simply because of his “general knowledge” about TM Crushing’s equipment situation. In short, general knowledge that a mine’s equipment is old and frequently needs repair is not the equivalent of aggravated conduct.
Although the agency argued that Pilling’s actions constituted greater than ordinary negligence, ALJ Manning found that the Secretary failed to prove that Pilling knew of the cited conditions and that no employee had informed him about these defects.
Moreover, Pilling had not personally inspected or operated the loader prior to MSHA’s visit, and he was not the on-site foreman; Pilling had responsibilities over three different pits and so was at the subject mine only two days per week. Although Pilling may have referred to the loader brakes as “soft” during the inspection, the judge found that this did not mean that they were broken or hazardous, only that it felt different than some other brakes.
With respect to the haul truck parking brake, Pilling had actually tested the brake and believed in good faith that it was functional, although he may not have tested it on the same steep grade as the inspector did. The inspector testified that he attributed the negligence of the entire business entity to Pilling, rather than showing he had specific knowledge of the cited conditions.
ALJ Manning concluded: “An insufficient examination of equipment may be negligent, but it is ordinary negligence and not aggravated conduct.” Although some of Pilling’s actions may have been negligent, the judge wrote, there was scant evidence shown by MSHA that there was a knowing violation. Therefore, both penalties were vacated.
Although this case turned out well for the agent of management, the judge took a very reasonable approach here. Still, given the outcome, one has to question why the company simply accepted these two elevated actions at full penalty when there were clearly some mitigating circumstances to be raised that might have defeated the “unwarrantable failure” claims by MSHA.
Equipment defects are often quite subjective – especially when it comes to things like the “softness” of brakes. To sustain a “high negligence” citation, by definition MSHA has the burden of proving not only that a violation occurred, but also that there are no mitigating circumstances.
Training, past inspections and a history of timely repairs all can go toward mitigation of negligence. And, given that Section 104(d) citations and orders are one of the paths that lead a mine operator toward Pattern of Violation status, they should be critically evaluated every time, rather than being paid for expediency or economic reasons.
By paying the penalties without contest, the company in essence threw the manager under the bus by admitting that he engaged in aggravated conduct. Fortunately, the ALJ in this case saw past that and considered the facts and evidence through fresh eyes. Had a different judge considered this, the outcome might have been significantly different.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Maryland. Abrams provides consultation, safety audits and training services to MSHA- and OSHA-regulated companies. Contact Abrams at firstname.lastname@example.org or visit safety-law.com for more information.