Often Fighting Back is Worth the Time and Effort.
By Adele Abrams
These days, it may seem like almost an insurmountable obstacle to get citations vacated by Administrative Law Judges, especially if the mine operator is handling the case itself against a government attorney. However, a recent ruling by Administrative Law Judge Manning shows that there is sometimes light at the end of the tunnel.
In the February 2011 decision in Lehigh Southwest Cement Co., the mine operator’s safety manager and safety coordinator challenged 12 citations and orders totaling $43,356 in proposed penalties and was successful in getting 6 of them vacated, some of the remaining citations reduced to non-S&S, and getting an additional Section 104(d)(2) order modified to a Section 104(a) violation. Total penalties imposed by the ALJ dropped to $10,647. It was unknown at press time whether MSHA planned to appeal to the Commission.
The citations/orders at issue were “plain vanilla” for the most part, although two were originally classified as “unwarrantable failure” violations under Section 104(d) of the Mine Act. That is to say, there were no accidents, injuries or near-misses involved and they were issued during a routine inspection. Despite this, several of the original assessments were quite costly – in excess of $2,500 per alleged violation. Because more mine operators are resorting to the contest process because of the large volume of MSHA citations being issued, and their impact on the mine’s history of violations if simply paid despite disagreement with the allegations, it is useful to consider what arguments worked in this case, and the basis for the judge’s determinations. So, let’s focus on the citations/orders that were vacated in this case, and the Section 104(d) modification.
The first, a Section 104(d)(2) order, alleged a non-S&S violation of 30 CFR §56.17001, because several light bulbs and fixtures in the company “break room” were not working. There had been reports to the operator about this, which MSHA used as the basis for a high negligence allegation. The standard requires that “illumination sufficient to provide safe working conditions shall be provided in and on all surface structures, paths, walkways, stairs, switch panels, loading and dumping sites, and work areas.”
MSHA argued that there was insufficient illumination, but did not take any readings of light levels. There were two functioning light fixtures in the room, plus ambient light from the TV, windows and open doors. The room was used for breaks, but miners also changed clothes in the room and – because they put on safety gear there – MSHA claimed that made it a work area.
The company responded that the standard did not apply to the break room because it was not a work area, the lighting was adequate for the room, and that the subjective opinion of an MSHA inspector was not sufficient to establish a violation.
The judge vacated the order. Although he agreed that it was not a work area, he did find it was a “surface structure” falling within the cited standard. However, he said that in determining the sufficiency of light, the court had to consider what was being done in the area, and he credited testimony that miners often unscrewed bulbs to dim lights during breaks, and that the room was not so dark as to present a hazard to miners, considering the purpose of the room.
A highwall drop-off area that was not barricaded against entry was originally cited as an unwarrantable failure order, under “Rules to Live By” barricades and signs standard §56.20011. For this item, Lehigh argued that the hazards were immediately obvious to anyone in the mining industry, and that it had warning signs posted warning generally of hazards at the mine. The ALJ upheld the violation but downgraded it to non-S&S, because testimony indicated that miners did not randomly enter this area, there was no evidence that anyone had driven near the edge, and those who needed to work on the bench were aware of the edge. He noted, however, that the court must consider “erratic and unpredictable” human behavior. He found that while signs were present, they were too general to warrant vacating the citation. He also rejected MSHA’s high negligence/unwarrantable failure allegations, holding that even though the mine had previously been cited under this standard, the instant violation had not existed for a long period of time, did not pose a high degree of danger, and was not an obvious violation – nor was there management knowledge.
Another vacated citation involved the elevated walkways standard, §56.11002, which MSHA cited as S&S with moderate negligence. The area cited, however, was a flat area by the parking lot and the stairway down the hill did have handrails. There was an area on the edge that had a drop-off that was not protected. The mine operator successfully argued that the cited area was not a “crossover, elevated walkway, elevated ramp, or stairway” within the meaning of the standard. The ALJ agreed that the standard did not apply; noting that there was a protected stairway of substantial construction available, and the area cited was level ground at the top of a hill. The language of the standard applies to structural walkways that are elevated above ground level, not the ground itself.
Lehigh also scored in defeating a guarding citation under §56.14112, involving a guard on a self-cleaning tail pulley on the rock stacker, which had been damaged on its corner, with about a 4-in. x 10-ft., long area exposed. Although there was no dispute about the damage, the mine operator put on testimony that an hourly employee had caused the damage accidentally earlier in the shift with a Bobcat. The judge held that the Secretary did not demonstrate that the guard was not constructed or maintained to withstand vibration, shock, and wear during normal operations. The Bobcat incident was not “normal operations” and, Judge Manning opined, “any guard will become bent if someone hits it with mobile equipment.”
Next on the hit list were two citations involving spills of hydraulic fluid, cited under §56.4102, which provides that “flammable or combustible liquid spillage or leakage shall be removed in a timely manner or controlled to prevent a fire hazard.” MSHA acknowledged that the oil in the cited areas looked fresh, but claimed that the fluid was highly flammable. In vacating the citations, the judge took note that the inspector could not pinpoint when the spillage had occurred, or that the mine operator was aware of it. He continued that there was no evidence that the fluid had soaked into the floor, and therefore there was no basis for the court to conclude that the operator had failed to remove it “in a timely manner.” He relied on the Commission ruling in Lopke Quarries, 23 FMSHRC 705 (FMSHRC 2001), which held that “whether an operator fails to correct a defect in a timely manner depends entirely on when the defect occurred and when the operator knew or should have known of its existence.”
Another citation vacated was issued under Section 104(a) for an alleged violation of §56.11012, stating that a feed chute located on the reclaimer inside the clinker dome was not adequately guarded to prevent persons from falling into the chute. The chute was at ground level and had an opening that was 30-ft. across. There were three chains attached to either side of the opening, but the lower chain was broken. The inspector had classified this as S&S with moderate negligence (and a $5,961 penalty). In his testimony, the inspector said that the chute had been modified to allow for manual feeding and that the ground was unstable so someone could easily slip and fall.
The company representative testified that the only reason any miner would be near the feed chute was to check on the auto-lubers which automatically lubricate the equipment, and they do not need to walk by the opening to perform this task. The company had previously been told by one inspector that no guard was required because it was not a travelway, but another inspector had suggested chains be installed and the company had complied (without being cited). The company also presented evidence that the loader operator who dumps in this area is never close enough to the opening to create a hazard, and no employees hand-shovel material into the opening.
Judge Manning held that this was not a travelway within the meaning of the standard because miners do not regularly walk in the area. He relied on other decisions consistent with this position:
He cautioned, however, that if miners do begin walking in the area in the future, then the requirements of the standard would apply and a railing, barrier or cover would be required.
All in all, this was an excellent outcome for the company, even though six citations were sustained. The lessons to be drawn from this were that even where there is no dispute as to the characterization of cited conditions, MSHA still carries the burden of demonstrating that the precise language of standards was not satisfied and that the standard actually applies to the cited conditions.
Because so many MSHA standards are subjective, it is common these days to find the agency relying simply on the inspector’s “belief” that something presents a hazard without going the extra mile to take readings or measurements. The operator also appeared to have brought case law to the judge’s attention that supported their defenses – a step that pro se litigants often skip to their detriment. Finally, the operator presented credible testimony that was successful in rebutting some of MSHA’s unsubstantiated assumptions about exposures or duration of violative conditions. The ALJ is ultimately vested with the power to weigh the respective credibility of each party’s witnesses and – unfortunately – some of the judges with less experience than ALJ Manning may be tempted to automatically defer to the agency’s inspectors. However, when you combine a good understanding of what regulations require, where they apply, reference appropriate case law and put on supporting testimony, this decision illustrates that it is still possible to get a good result and makes it worthwhile to go to trial over the most basic citations.