 | Willa Perlmutter, Crowell & Morning, LLP, offers tips on how to host an on-site visit from MSHA or OSHA.
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| by Jon M. Casey
HERSHEY, PA — When businesses face the prospect of an inspection from MSHA or OSHA, managers need to know what is expected to stay in compliance. They also need to know what can be done to avoid problems on a larger scale, problems that can result from warnings or citations from either of these regulatory agencies. According to Willa B.
Perlmutter, counsel with the Washington, D.C. law firm of Crowell & Moring LLP, planning is essential.
Perlmutter was addressing quarry management personnel at the 2008 annual meeting of the Pennsylvania Aggregates and Concrete Association annual meeting held recently in Hershey, PA. There she said, “The more you have nailed down and know what you are going to do in a particular situation, the better prepared you are going to be to handle the unexpected things that come up. If it looks like you know what you are doing, it will look as though you are serving as an advocate for your operation when they arrive,” she said.
“If you minimize chaos before they arrive, they will start from the assumption that this is what your operation looks like across the board. It gives them a certain confidence level in your operation.”
Perlmutter, whose practice targets administrative enforcement and other mining industry regulatory and legislative issues, cited a letter written on Oct. 20, 2008 by then presidential candidate Barack Obama to John Gage, national president of the American Federation of Government Employees, AFL-CIO. In it, Obama said that should he win the presidential election, under his administration MSHA could be expected to change ways that will affect quarry operators and their employees. Now that he has won, the changes can be expected.
The Inspection:
Perlmutter said that when an inspection takes place, it is a good practice to have one company representative devoted to overseeing the inspection. In this way, the company can determine who is taking the inspector around the facility and it will limit any discrepancies that might occur should a different inspector from the initial one become involved in the visit. She said it also allows an opportunity to monitor any conversations that inspectors might have with people on the job, something that is well within the regulator’s scope of responsibility.
Note with whom the inspector had conversations with. Note too the time they had the discussion. She said it is permissible for the guide to know what was said and to write it down for future reference.
“There is nothing prohibiting a correction of information if the employee has errantly given information that is not correct,” she said. “It is important to make the corrections before it turns into a citation. Who it was and what they said is important.”
She went on to say that it is appropriate to ask inspectors what they are thinking in the way of what might be a violation. Ask if they plan to give a citation on that infraction.
“You may wish to say to the inspector, ‘What regulation is it that is in violation? We would be happy to correct it, but we aren’t clear on what the violation is.’ You may wish to take out your blue code book and ask the inspector to show you where the violation is,” she said.
“Immediately correct the violations and, if appropriate, challenge later,” she said. “Involve experts if necessary. Never speculate; stick to the facts. Do not admit to any infractions.”
Perlmutter said that after the inspector has arrived, it is reasonable to wonder if a lawyer should be called in on the business’ behalf. In many cases, it is better if a lawyer is not called in initially, giving the operator an opportunity to correct any deficiencies without litigation, she said. To the contrary, she emphasized that if there is a fatality on the jobsite or if community issues are the reason that the agency is involved, then getting legal advice is the better option.
“You want to establish a cooperative relationship with the inspector as a way to raise their level of confidence in you,” she said. “You want to be clear with inspectors from either MSHA or OSHA that you will cooperate with requests for documents if possible. If the inspectors require more than the Mine Safety and Health Act requires, tell the inspectors that they will have to make the request in writing. In this way, both sides are clear and there is no ambiguity about what is wanted. It also adds a layer of accountability.”
Perlmutter said that when it comes to trade secrets, OSHA has regulations to cover this situation, while MSHA does not. Since under MSHA guidelines there are no trade secret rules, some of the information you may not wish to be shared might include what specifically is being mined in a quarry. When dealing with OSHA on the other hand, the agency needs to know if a business is going to be disclosing trade secrets. When this happens, the business should be able to expect confidentiality on the part of the agency.
“You may not want to discuss quantities or things that you do not want your competitors to know about your operation,” she said. “You may want to say to the regulators that you will provide the information, but that you expect them to hold it as confidential information.”
Perlmutter said that every now and then, an inspector might request a demonstration of some activity. She emphasized that whenever that happens, do not conduct a demonstration. She noted that invariably, a demonstrator makes a mistake. That gives the agency cause to find fault with the process.
She said that if the company guide says stay with the inspector, the opportunity to minimize any penalty is best at the time of the inspection. By pointing out any deficiencies in the inspector’s observations at the time, it may reduce or eliminate a citation in the process. An example would be if an inspector believed they saw a need for a person to tie off when working from a height where there is in fact, no danger of that person falling.
Acknowledging the seriousness of a violation or unsafe condition will only increase the company’s exposure to being negligent in that situation.
“Avoid discussing how long a violation might have existed and whether anyone knew about it,” she said. “Do not give false or misleading statements. Do not give a needless rebuttal to a comment or discussion.”
Once the inspection is completed, insist on a closing conference. Ask for copies of samples, photos, and any information that will be helpful. Be sure to discuss how to abate any violations. Try to correct any misunderstandings. Ask questions. Re-emphasizing the need for management to avoid making any admission regarding violations or knowledge of any of the violation conditions, Perlmutter said anything that is said might be used to support their findings rather than being helpful to the company. “Never lie or intentionally mislead the investigator,” she said.
Do we need a lawyer?
Perlmutter summarized briefly by saying that a company might wish to contact legal assistance if it is clear that legal advice is needed during the inspection. This is usually the best decision when there is a fatality or the community is affected in some way. Other reasons to consider legal counsel could be if costly abatement is needed, if there will be high penalties or if there are flagrant violations at a worksite. If there is a serious accident, possible criminal activity, or a regular pattern of violations, a lawyer might be an asset in these cases as well.
While the aforementioned tips only begin to offer help in understanding how to work with OSHA and MSHA when an inspection takes place, Perlmutter reminded PACA members that there are several ways to work with these two agencies. She stressed that often, the nuances of the process require someone with previous experience in that arena for best results.
For more information on how to prepare for OSHA or MSHA contact Perlmutter online at www.crowell.com/Professionals/Willa-Perlmutter or via e-mail at wbperlmutter@crowell.com.
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Article from Rock Products:
MSHA Inconsistency Voids Guarding Citation in two Cases Feb 1, 2009 12:00 PM, ADELE ABRAMS
"Two recent cases before Federal Mine Safety and Health Commission Administrative Law Judges addressed MSHA's interpretation and application of its guarding standards. Where MSHA failed to give appropriate notice of what was required to serve as an “adequate” guard, the court refused to uphold the citation; in other instances, it rejected MSHA claims of “significant and substantial” violations involving high negligence. Guarding always has been a controversial subject when it comes to MSHA enforcement, because the concept of what is an “adequate” guard is subjective, and there always is some degree of debate over whether one must guard to simply avoid accidental contact with moving parts, or whether one must guard against intentional stupidity. The latest pair of decisions (one in the aggregates industry, one in coal) provide a bit of guidance on how the judges are applying the law these days. SCENARIO 1 In Sangravl Company Inc. (ALJ Hodgdon, Nov. 26, 2008), the small Tennessee sand and gravel company received and challenged five citations that carried a proposed total penalty of over $4,000 — several of which involved guards. The company had only four individuals working at the time of inspection, none of whom were in the vicinity of the guards at issue — they were a crane operator, the plant operator, a truck driver and a front-end loader operator. Moreover, the plant was not running on inspection day, due to a shortage of sand. The first citation issued under 30 CFR 56.14107(a), claimed that a return roller on a conveyor was guarded and that it had moving parts 4 to 5 feet above ground level, and that the roller was 4 to 5 inches in diameter. The cited standard states: “Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and take-up pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” In the citation at issue, there were partial guards on each side of the conveyor roller, but the bottom portion was unguarded. The president of Sangravl Company Inc. testified that the previous inspector approved the existing guarding and that no miners clean up or work under the plant while it is running. ALJ Hodgdon found the chance of a miner inadvertently contacting the roller — while not impossible — was extremely unlikely. There was no evidence that the roller was worked on while running, and none of the four employees' job assignments were located near the roller. JUDGE VACATES IRRATIONAL CITATION The judge vacated the citation because the operator did not have notice that the roller was not properly guarded. He quoted the Commission's 1990 ruling in Ideal Cement Co.: “It is appropriate to evaluate the evidence in light of what a ‘reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have provided in order to meet the protection intended by the standard.’” MSHA had initially recognized that the previous inspector had approved the guard, but thought this warranted only a reduction from “high” to “moderate” negligence. The judge disagreed, and said that because the previous inspector — a person “familiar with the mining industry and the protective purpose of the standard” had okayed the guard, there was no way for the operator to know that the guarding was inadequate. Therefore, the citation was vacated. SECOND CITATION ONLY MODIFIED A second guarding citation in this case was not vacated, but was modified from S&S to non-S&S. This involved a conveyor head pulley that had a portion unguarded 4 to 5 feet above the ground and had protruding bolts that supported the bushing. In analyzing the gravity of the violation, ALJ Hodgdon noted that the agency must establish a violation of a safety standard, a distinct safety hazard contributed to by the violation, a reasonable likelihood that the hazard would result in an injury, and a reasonable likelihood that the injury would be of a reasonably serious nature. The company witnesses testified that employees do not frequent the cited area when the plant is running because water flows over the equipment, and they avoid it in order to stay dry. The judge agreed that because employees would rarely be in proximity, it was unlikely that any contact would occur with moving parts. Therefore, the violation was not S&S. He also rejected MSHA's claim that this was a “high” negligence violation, and he reduced the negligence to “moderate.” A third guarding violation was affirmed as S&S, but the judge again reduced the negligence to “moderate.” SCENARIO 2 In the coal mine guarding case (where an absent guard was cited under 30 CFR 77.400(a)), ALJ Feldman disagreed with MSHA's claim that the violation was S&S, although he did find that a guard was needed in an area that was infrequently traveled, where the moving part was adjacent to a highwall, and the area was only accessed by a crossover constructed over the beltline. Reference: Process Energy (ALJ, Nov. 17, 2008). The language of the cited standard is not identical to the metal/nonmetal rule, but is the functional equivalent: “Gears; sprockets; chains; drive heads; tail; and takeup pulleys; flywheels; couplings; shafts; saw blades; fan inlets; and similar exposed moving machine parts which may be contacted by persons, and which may cause injury to persons, shall be guarded.” In affirming a violation, albeit modified, ALJ Feldman reminded the parties that the “controlling case” on guarding violations is the Commission decision in Thompson Brothers Coal Co. (FMSHRC 1984). In that case, the Commission stated: We find that the most logical construction of the [guarding] standard is that it imports the concepts of reasonable possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness. In related contexts, we have emphasized that the constructions of mandatory safety standards involving miners' behavior cannot ignore the vagaries of human conduct…. Applying this test requires taking into consideration all relevant exposure and injury variables, e.g., accessibility of the machine parts, work areas, ingress and egress, work duties, and as noted, the vagaries of human conduct. Under this approach, citations for inadequate guarding will be resolved on a case-by-case basis. RUSTY CITATION The Sangravl case had one other interesting citation at issue — this involved a rusted “H” beam at a screening tower, which MSHA cited under the generic “defects affecting safety” standard (30 CFR 56.14100(b): “Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” This standard is typically cited for mobile equipment hazards (e.g., missing steps or windshield wipers, or malfunctioning lights), or for smaller tools that have problems such as a mushroomed hammer head or a poorly repaired come-along. It is quite unusual to apply this to a structural condition in a mine building. Here, the inspector alleged there was “significant” rust between two lateral runners on the H beam, which was 15 feet above the ground. A portion of webbing was missing, and the inspector hypothesized that it had been in this condition for about six months. The inspector graded it as “S&S,” speculating that if it continued to rust, it could fall, and that the entire area could collapse, and could knock over an electrical box next to the control house causing an electrocution hazard. In the alternative, he argued that it could strike an employee if one were working underneath when it eventually collapsed. The judge did affirm application of the “defect” standard to the structural element of the tower, but found it was not S&S because it was unlikely that the control house would collapse or that anyone would be in the area if the beam did eventually fall. Operators should be on notice, however, that this ruling will likely encourage other inspectors to use this “catch-all” standard for building defects in addition to those of tools, machinery or mobile equipment."
AUTHOR INFORMATION Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com
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Court Allows MSHA to Cite Multiple Employers Sep 1, 2008 12:00 PM, ADELE ABRAMS "The U.S. Court of Appeals for the Fourth Circuit affirmed citations issued to a mine operator for the sins of its contractor. More disturbingly, in the case of Speed Mining Inc. v. FMSHRC, the appeals court held that MSHA had “unreviewable discretion” to cite the mine operator (or owner), the contractor or both in such circumstances. Another U.S. Court of Appeals — for the D.C. Circuit — came to the same conclusion in 2006, in the Twentymile Coal case. Having the new decision affirm the authority of MSHA, and some statements made by the judges that this power is “settled law” will make it far more difficult for production operators to distance themselves from violations over which they have little control and may have no prior knowledge. SPEED MINING INC. The Speed Mining Inc. (SMI) case has been in the courts for a while, and the facts presented are worth some consideration. SMI is the owner-operator of an underground coal mine in West Virginia, and it engaged a contractor (Cowin and Co. Inc.) to sink an elevator shaft at the mine. The court found it somewhat significant that, when retaining Cowin, SMI did not check its history of safety violations nor its history concerning employee injuries … and that Cowin's injury rate was four to 10 times higher than the national average over the preceding eight years. SMI and Cowin's contract gave Cowin “almost complete discretion” to sink the shaft as it saw fit and specifically stated that Cowin “maintained complete control at all times over its employees and any Subcontractors, Vendors or others working under Cowin's supervision.” The contractor also explicitly said that Cowin was responsible for complying with all laws, rules, order and regulations — federal, state and local — applicable to the sinking of the mine shaft. In August 2004, Cowin began work and MSHA issued four citations to Cowin a month later (but not to SMI). A second independent contractor at SMI's site (American Electrical Inc.) also received citations. SMI only was cited in relation to that contractor for failure to provide hazard training to the electrical contractor's workers. Weeks later, an accident occurred at Cowin's shaft-sinking site, when a crane hoist failed and a six-ton bucket fell near five Cowin employees. No one was seriously injured. In addition, no SMI miners appear to have had any exposure to the hazardous condition. MSHA MAKES CITATIONS MSHA cited Cowin for six violations of the agency's safety standards: failure to correct crane defects, failure to adequately train its operator, failure to comply with the MSHA shaft-sinking plan (two citations), failure to remove the crane from service, and failure to do an adequate pre-operational check of the crane. SMI received six citations, nearly identical to those issued to Cowin, except that SMI was charged with a lesser degree of negligence. SMI contested its citations and, based on the then-precedential ruling by the Commission in Twentymile Coal (which held that MSHA abused its discretion in citing a production operator for contractor's violations), an Administrative Law Judge agreed to vacate SMI's citations. MSHA appealed to the Commission, and the case was stayed because the Twentymile Coal case was pending appeal to the D.C. Circuit of the U.S. Court of Appeals. In July 2006, the D.C. Circuit held that the Secretary of Labor possessed discretionary authority to “cite owner-operators, their independent contractors, or both for safety violations committed by the independent contractors,” and that the Commission lacked authority to review these discretionary decisions. Subsequently, the Commission remanded SMI's case back to the ALJ, who affirmed all six citations based on the Twentymile ruling. The Commission denied SMI's petition for discretionary review, and its appeal to the Fourth Circuit followed. SMI'S DEFENSE SMI made two arguments: (1) The Mine Act bars the Secretary from citing an owner-operator for violations committed by an independent contractor; and, in the alternative, (2) that even if the Secretary had discretionary authority, she abused her discretion in the SMI case. The first argument rested on language in Section 104(a) of the Mine Act, concerning the Secretary's citation power. It states: If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator … has violated [the Act], or any mandatory health or safety standard, rule, order or regulation promulgated pursuant to [the Act], he shall, with reasonable promptness, issue a citation to the operator.” [emphasis added] Since another provision of the Mine Act deems both production operators and independent contractors to be “mine operators” by definition, SMI argued that the use of the definitive article “the” before operator in Section 104(a) indicated that the Secretary only had statutory authority to cite “the operator” that “has violated” the standard. Since Cowin, not SMI, violated the standard and was “the operator,” MSHA lacked authority to cite SMI, it argued. The Secretary's counsel rebutted that this was a fundamentally flawed interpretation of the statute, and the Fourth Circuit agreed that the Act granted the Secretary discretionary authority to site either the production-operator, the contractor or both for any violations committed by an independent contractor. It also pointed to two early cases: Cyprus Indus. Minerals Co. v. FMSHRC (9th Circuit 1981), and BCOA v. Secretary of the Interior (4th Cir. 1977), which had the same finding under the 1969 Coal Act (prior to the establishment of MSHA). THE HOLDING In discussing its holding, the SMI court also noted the strict liability aspect of the Mine Act, which dictates that mine operators can face civil penalties if a violation merely occurs at its mine, regardless of fault. It also stressed that the early BCOA decision held that the owner of a mine may be held “jointly and severally liable for violations committed by” its independent contractor. The Coal Act's provisions, upon which the BCOA court relied, were largely unchanged in the 1977 Mine Act, other than the 1977 law added “independent contractors” expressly to the definition of “mine operator.” The Fourth Circuit also examined the legislative history of the Mine Act and found that the Senate Report stated that the “purpose of [one of the accepted amendments] was to give statutory expression to the doctrine of BCOA.” Other appeals court decisions also were cited, although those basically affirmed citations issued to the mine operator for contractor violations but stopped short of claiming that MSHA's discretion to do so was unreviewable. The SMI decision stressed it was consistent with the purpose of the Mine Act: protection of the health and safety of miners. Precluding liability for contractor violations would encourage owners to use contractors as a means of insulating themselves from safety regulations, it said, and because owner/operators are in continuous control of mine conditions and are more likely to know federal safety and health requirements. Thus, mine safety would not be encouraged by letting the owner “exonerate itself … merely by establishing a private contractual relationship.” The court held that owner/operators possess ultimate authority over contractors in terms of retaining, supervising and dismissing them, if necessary. The court declined to adopt an interpretation of the Act that “would encourage owner-operators to remain willfully blind to the safety histories of their independent contractors,” which it claimed SMI did in this case. The court dismissed SMI's alternative argument on abuse of discretion, saying the claim was “unreviewable.” The court did take note of MSHA's “Enforcement Guidelines” on multi-employer citation policy. However, even though SMI argued that these guidelines provided an objective framework to use when considering abuse of discretion, the court pointed out that the guidelines were non-binding and the Secretary was not required to observe them. The court also balked at using a “factual basis” standard of review under vicarious liability tort principles or under a principal/agent theory. It again noted that it concurred with the “joint and several” liability approach taken in the BCOA decision. IN CONCLUSION The court said that the decision on which operator to cite for a Mine Act violation rested on a “complicated balancing of a number of factors.” It found that the agency, not the courts, was best equipped to balance these factors and determine its enforcement priorities. In short, the Federal Mine Safety & Health Review Commission — despite being an independent appellate agency — must defer to the Secretary's expertise in its enforcement choices. Bottom line: Mine operators can expect many more citations in the future arising from contractor actions or equipment defects, when present at their mines. Prequalifying and thoroughly training contractors, and documenting enforcement of safety provisions when it comes to contractor oversight, may help convince MSHA at the outset not to cite the mining company. But if a citation is issued, the operator will be limited to challenging the fact of violation, gravity, negligence and penalty issues … not the propriety of citing the mine operator in lieu of, or in addition to, its contractor."
AUTHOR INFORMATION Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com
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