No time to put your head in the sand –  MSHA and failure-to-abate orders

Lately I’ve been giving some thought to what MSHA considers “enhanced enforcement,” which really refers to enforcement actions that MSHA takes against a mine operator beyond the § 104(a) citations that are the most frequent result of a mine inspection. (We call them “§ 104(a) citations” because the authority for issuing them comes from § 104(a) of the Mine Act. Make sense?)

Enhanced enforcement could be something like a § 104(d) unwarrantable failure citation, or it could be a § 107(a) imminent danger order. Before you tell me that anybody who spends time thinking about enhanced enforcement seriously needs to get a life, remember that a mine’s enforcement history is important for many practical reasons. A history of enhanced enforcement is one of the things MSHA considers when deciding whether to target you for an impact inspection or worse, a pattern of violations notice. So, it is important to avoid getting into those types of jams in the first place.

What’s been on my mind the last few weeks has been a different kind of enhanced enforcement. Specifically, I’ve been thinking about § 104(b) failure-to-abate orders. Recall that whenever an inspector writes a citation, Block 16 includes a date by which the mine operator has to abate the alleged violation.

If the inspector comes back after the deadline and finds the violation hasn’t been fixed, he will write a § 104(b) order directing the operator to remove all personnel or shut down the affected equipment until the inspector is satisfied that the violation has been abated. It wasn’t long ago that so-called “(b) orders” (what the cool kids call them) were a rarity, but lately they’ve been popping up with increasing frequency.

Two of my clients recently had to deal with (b) orders. The contrast in the very different ways each managed the fall-out provides an excellent object lesson in how you should, and should not, respond when MSHA starts handing them out.

One client is relatively new to the mining industry. They recently took over a small surface mine and have been learning how the Mine Act works while also trying to bring operations into compliance with myriad regulatory requirements. Last fall, MSHA came to inspect the site and did some testing that showed that three equipment operators were getting over-exposed to respirable dust.

MSHA issued three citations, each with an abatement deadline that was far enough out to give them time to come into compliance. I don’t believe the company understood that MSHA was deadly serious or that the abatement deadline was not merely a suggestion, but mandatory.

When MSHA came back a month later, the mine was still not in compliance. The inspector extended the abatement deadline and gave the company another month to get their house in order, but when he came back a third time and the dust exposures had actually gotten worse, the dust really hit the fan. (See what I did there?) He shut down production altogether, just a couple of days before Christmas.

Over the next month, company managers met with MSHA’s district personnel to try to get it all figured out. To its credit, MSHA patiently tried to work with management to find a path forward so they could reopen and avoid financial ruin.

Nonetheless, the company kept pushing back at the agency and persistently refused to listen to suggestions that would have gotten them back up and running. The company believed that when MSHA understood the financial implications of the continued shut-down, the agency would relent and let them return to operations before they addressed the dust issue. Not so. As of this writing, they remain shut down.

My second client is an experienced operator of a large and remote underground mine accessed by a very long road that connects the site to a state road. MSHA has long expressed concerns with where and how berms are maintained along the road, and in November issued a citation noting some 70 spots it believed were insufficiently protected against vehicle rollovers.

Instead of metaphorically sticking its fingers in its ears, the company sprang into action and started making repairs. MSHA agreed to extend the citation’s abatement deadline twice, to give the company more time to catch up (I mean, after all, 70 locations?). But eventually, the inspector got frustrated and issued a (b) order that effectively shut the massive site down altogether.

Personnel who had been at the site for weeks were prevented from going home when their hitch ended, and the oncoming shift could not get to the mine to replace them. The (b) order even prevented food and emergency supply deliveries.

So, what did the mine do? First, they went to the field office supervisor and got him to modify the (b) order so the stranded personnel could at least get home. At that point, it was hard for MSHA to argue that the road was more dangerous for incoming travel than for outbound, so the field office modified the (b) order a second time. After that, though, MSHA dug in its heels and refused to make any further modifications.

That’s when we got involved. We filed a contest proceeding with the Federal Mine Safety and Health Review Commission, challenging the reasonableness of the abatement deadline MSHA had insisted on. Before filing, I got on the phone with MSHA’s lawyers and explained the situation, emphasizing that we wanted to work with the agency, and more importantly, that we agreed that the primary concern was protecting miner safety.

At the same time I was working the lawyers, my client was talking directly with the district manager. Together, they developed a plan by which the road would be reopened and stay open even while it was still being fixed. The (b) order was terminated less than 24 hours after it was issued and operations returned to normal. There is no doubt that filing the contest proceeding, combined with person-to-person discussions between the mine and MSHA, and the immediate and proactive efforts to address the road’s deficiencies were the one-two punch it took to get the order lifted.

So, what are the takeaways, you ask? First, and most importantly, mine operators should pay close attention to the abatement deadline set by your inspectors. If you can’t meet that deadline, don’t pretend it doesn’t exist. Get on the phone with the inspector (or the field office supervisor, or the district manager) to negotiate an extension. You’re entitled by law to a “reasonable time” to abate a violation, and if you’re not getting the time, you should push back. Be prepared to show MSHA how you’re protecting health and safety while you’re working on abatement, but by all means, demand a reasonable time to abate.

Next, if you do get a (b) order, you must take it very seriously. Call MSHA and talk with them (respectfully – they hold all the power in this situation) about how you plan to accomplish abatement. Get their input as to what would satisfy the agency as you move forward. Finally, if all else fails, you may need to bring in your lawyers. This isn’t always the way it goes, but sometimes you really do need to show MSHA the big stick or a one-two punch to get them to back off.

Willa Perlmutter
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].

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