By Willa B. Perlmutter
Let me tell you about an experience I had with a Labor Department lawyer earlier this month. It was one of those experiences that made me realize how important it is for those of us in the mining industry to have a good working knowledge of the Mine Act and how enforcement is supposed to work.
I represent a really good client, a company that mines its own materials and uses those materials in construction projects around the community. The construction side of the business is really what they do, with the rock production part being a small but necessary aspect of the operation. They generally have an excellent enforcement record when it comes to MSHA, but it would be a mistake to call them sophisticated mine operators.
It’s a fine, close-knit group of people, out there doing their best and trying to make a living. Every contact I have with them is positive and reminds me of how much I like the people part of what I do.
One Friday afternoon a while back, some of the folks on the mining side of the operation were welding a new guardrail on the crusher feeder because an MSHA inspector required that as a condition of terminating a citation. They were installing the new guardrail in sections and using the raised bucket of a loader as a physical barricade to provide fall protection for each section that was missing as they advanced along the feeder.
As they were getting ready to install the last section, MSHA arrived on-site to terminate the earlier citation. The three miners working on the installation were struggling a bit to stabilize the last piece of rail. Just as the inspector and the management representative got to the crusher, the loader operator jumped out of the machine and ran to lend a hand to the miners on the catwalk – leaving the loader unattended and the bucket raised.
You know what happened next.
The inspector issued a bunch of citations, including one written as a significant and substantial (S&S) violation of § 104(d)(1) of the Mine Act, alleging that the company had unwarrantably failed to comply with 30 C.F.R. § 56.14206(b) because the loader had been left unattended and the bucket had not been lowered to the ground. Despite the fact that the inspector and the supervisor came on the scene at the exact same moment, the inspector called out the supervisor by name, alleging that he was actively engaged in the work and knew that the bucket had been in the air while the loader was unattended.
Was there a violation? Sure, probably. Was it an unwarrantable failure? Oh, (heck) no.
We entered into settlement discussions with the Solicitor’s Office, essentially MSHA’s law firm. I asked, among other things, that the unwarrantable failure allegation be dropped and the citation modified to a § 104(a) citation because it’s clear that the supervisor had no idea the violation would occur until the moment it happened.
The inspector and the supervisor discovered it at the exact same time. Yet, when I asked for the modification, the MSHA lawyer would only modify the citation to non-S&S and insisted on leaving the unwarrantable allegation in place. Her rationale was that the hydraulic system on the loader would make a catastrophic failure nearly impossible and thus an accident was unlikely.
That’s true – but it also didn’t address the unfair accusation that the supervisor had unwarrantably failed to comply with the regulation.
Which leads to today’s lesson: negligence versus gravity. “Negligence” is just what you’d expect it to be. How careless was the operator? Or, as MSHA said in the Part 100 penalty regulations, did the operator know about the alleged violation? What steps did the operator take to prevent it? Were there any mitigating circumstances?
“Unwarrantable failure” is like super-negligence. The Commission has called unwarrantable failure “aggravated conduct constituting more than ordinary negligence,” equating it to reckless disregard or intentional misconduct. For an allegation of unwarrantable failure to stick, the company agent had to have done something that was so egregious that it was more than plain old vanilla negligence. Reckless disregard has to mean something.
The legal test for an S&S violation is simple. Was the violation reasonably likely to lead to an injury? And if so, was it reasonably likely that the injury would be serious? (In MSHA world, that means the injury would have to entail lost workdays, restricted duty, or worse.) For a violation to be S&S, MSHA has to be able to prove both that an injury is reasonably likely and that the injury is reasonably likely to be serious. If you have just one, that’s not good enough. You need both factors for a violation to be S&S.
To recap, negligence looks backwards. What did the company know, when did they know it, and what did they do about it? Gravity, on the other hand, looks to the future. What’s the reasonably likely result if the alleged violation is allowed to continue unabated?
Which brings me back to the MSHA lawyer who offered to reduce the violation I’ve described to non-S&S, but who would not drop the unwarrantable failure claim. She’s simply wrong. The supervisor discovered the violation at the same moment the inspector did. Of course he did not know it was going to happen until it did; once he and the inspector saw the loader operator exit the loader, they both shouted at him to go back and do things right. What did the supervisor know? Well, he saw the violation. When did he know it? At the very moment it happened. What did he do about it? He got the guy back in the cab.
Why am I telling you all this? Because it’s up to us, on the operator side, to pay attention when MSHA doesn’t do its job right. Nobody is arguing that there wasn’t a violation here. The facts are pretty clear. But neither was there an unwarrantable failure to comply with the regulation.
As a result of the inspector’s misapplication of the law, amplified by a lawyer in the Solicitor’s Office who, frankly, isn’t any more clear on the concept than the inspector is, the company faces elevated enforcement. The supervisor in question has been tagged with an agent penalty under § 110(c) of the Mine Act, and his many years of exemplary experience have been marred by an unfair and factually incorrect accusation.
Sometimes unwarrantable failures do happen, just as sometimes violations really are significant and substantial. But sometimes we need to speak truth to power, to keep the regulators honest and ensure that they, too, get it right.
Willa Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group. She can be reached at [email protected].