Strictly Speaking

A recent ALJ decision establishes that the Mine Act’s imposition of ‘strict liability’ on operators is not without its limits.

By Ben McFarland

Most who are familiar with the Federal Mine Safety and Health Act (Act) are aware that it is generally said to be a “strict liability” statute. This simply means that the Act and its corresponding regulations set forth standards which, if not complied with, can and will result in the issuance of a citation, regardless of whether there was any “fault” on the part of the operator. In other words, if a prohibited condition exists, it is a violation of the Act, regardless of any mitigating circumstances.

In a recent case involving two citations issued for failure to maintain certain mobile equipment, the Secretary of Labor (Secretary) tried — and failed — to rely on strict liability principles in order to uphold the citations. See Wake Stone Corp., Docket SE 2010-95-M (ALJ Gill, May 6, 2011). The citations at issue in Wake Stone alleged violations of 30 C.F.R. §56.14132(a) for failing to maintain the service horns on an excavator and a bulldozer. Neither the excavator nor the bulldozer had been in operation during the course of the relevant shift, and, when the inspector sought to inspect the equipment, the operator insisted that the vehicles be taken through their pre-shift examination as required under 30 C.F.R. §56.14100. When the vehicles were taken through the pre-shift examination, the operator discovered the malfunctioning horns, noted the defects in its pre-shift examination report, and tagged the vehicles as non-operational.

When the issuing inspector arrived at the mine, the vehicles had not yet been tagged as being out of service, and it is ostensibly for this reason that the inspector was not persuaded by the subsequent pre-shift examination and, instead, issued the citations alleging violations of 30 C.F.R. §56.14132(a).

In the contest proceedings that followed, the Secretary relied heavily on strict liability principles, arguing that “the ‘plain-meaning’ of Section 56.1432(a) is that if a horn fails, then the horn has not been maintained, and a violation has occurred.”

The Secretary further argued that, because the vehicles were not tagged out of service, they “might have been used,” which rendered them eligible for inspection and possible violations of the Act.

Finally, the Secretary argued that a contrary interpretation of the Act would permit operators to “‘escape’ strict liability for alleged violations by declaring [the need for a] pre-examination and [subsequently] tagging the vehicles out of service while the inspector stands by.”

Although ALJ Gill noted that the Secretary’s argument in this regard presents a “reasonable concern that should not be taken lightly,” and further that there is case law that supports the proposition that, if equipment has not been effectively tagged out of service, it is eligible for inspection and potential violations, ALJ Gill nevertheless refused to find a violation of the Act under the circumstances presented. ALJ Gill focused on the interplay between 30 C.F.R. §56.14100 and 30 C.F.R. §56.14132(a) to support his decision and opined that these regulations must be analyzed and interpreted together, not in isolation of one another.