A recent special investigation out of the MSHA Southeast District Office led to some surprises for a mine operator. The company had received two Section 104(d) “unwarrantable failure” citations/orders in a non-accident matter, and the operator assumed that this was the purpose of the special investigation. However, once the special investigator got started, it became apparent that he was also including a Section 104(a) citation, issued in relation to a Part 46 annual refresher training alleged violation.

That citation was classified as “non-S&S” (no likelihood of injury, no lost workdays) but had been rated as “high negligence.” When the mine operator (without counsel) conferenced it, MSHA raised the negligence to “reckless disregard” because, although the operator had already scheduled refresher training for seven days later, certain individuals (employees of a separate construction company owned by the same parent as the mine) had performed additional work after an initial Section 104(g) withdrawal order was issued. Several months had elapsed between the issuance of the citation and the scheduling of the special investigation, during which the company received a proposed assessment of $112 for the Section 104(a) “reckless” non-S&S citation, and had paid the penalty — thereby “admitting” the alleged violation. End of story? Not quite!

IT GETS WORSE

Needless to say, the idea that paying a $112 civil penalty could now expose the president of the small aggregates operation to a $60,000 personal civil penalty and possible criminal prosecution was quite a shock! The commission agreed to reopen the underlying citation penalty case, so a defense could still be offered. However, MSHA continues its pursuit of a Section 110C penalty against the parent company's top officer.

MSHA INTERPRETS MSHA

Because many people believe that only Section 104(d) citations and orders could precipitate special investigations and personal prosecutions, it is worth reviewing how MSHA interprets its powers under Section 110 of the Mine Act. Its Program Policy Manual states:

“MSHA is authorized to propose the assessment of a civil penalty against a director, officer, or agent of a corporate operator who knowingly orders, authorizes, or carries out a violation of a mandatory safety or health standard, or to pursue criminal proceedings against an operator or a corporate director, officer, or agent who willfully violates a mandatory safety or health standard.” The investigation of a possible Section 110 violation of the Mine Act is initiated, at the request of the District Manager, usually as a result of one of the following circumstances:

• a mine accident;
• a complaint received, such as an allegation of a possible violation of Section 110(f) (false reporting), or 110(h) (equipment misrepresentation); or
• reviewing citations/orders for possible knowing or willful violations.”

MSHA adds that the following types of citations and orders will be reviewed for further action:

• each 104(a) citation issued which contributed to the issuance of a 107(a) imminent danger order of withdrawal;
• each 104(d) citation or order which is identified as being significant and substantial (S&S) and the negligence has been marked “high” or “reckless disregard”; and
• each citation issued for working in violation of an Order of Withdrawal.

Only a violation of a mandatory health or safety standard or order issued under the Mine Act shall be reviewed for possible further action. This includes violations of 30 CFR, Parts 46, 47, 48, 49, 56, 57, 58 and 62. In this instance, because there had been an initial Section 104(g)(1) withdrawal order on training a few days earlier, the subject non-S&S Section 104(a) citation was issued as a “failure to abate” the previous Part 46 order, and so was classified as a violation of Section 104 of the Mine Act. Therefore, it could trigger the personal prosecutions.

STAY YOUR GROUND

Obviously, given the high stakes, it is important to understand what is not eligible for Section 110C actions. Citations issued under Part 46, 48 and 50….if they do not involve orders….would be regulatory violations, not violations of a mandatory health or safety standard. Consequently, any citation issued under Sections 104(a) or 104(d)(1) would be exempt if it involved these sections of 30 CFR unless it also involved orders under Section 104B (failure to abate) or Section 107A (imminent danger).

The bottom line is that mine operators need to carefully scrutinize every citation and order received that involves elevated negligence charges because even a $112 penalty can provide a basis for severe civil and criminal penalties against agents of management at the mine.

CASE SUMMARY: LOCKING TRIGGERS DO NOT VIOLATE MSHA STANDARD

MSHA's attempt to bar power tools that come equipped by the manufacturer with lockable trigger devices was defeated by a coal mine operator in a recent case decided by Administrative Law Judge Hodgdon. The case also reaffirms the applicable policy for the safe use of specific hand tools at metal/nonmetal mines.

In Hazleton Shaft Corp. (ALJ, Dec. 14, 2007), which was decided on stipulated facts rather than through a hearing, the inspector observed a Dewalt four-inch grinder on a work bench; the grinder was equipped with a pressure-sensitive trigger requiring constant finger pressure to operate it. However, it also had a trigger lock that — when engaged — allowed the grinder to operate without constant finger pressure. The grinder was manufactured with both the pressure-sensitive switch and the trigger lock, and both were functional. The grinder was not tagged-out of service or otherwise marked to indicate that it should not be used. MSHA cited the mine operator because the equipment had the trigger lock device, and miners reportedly stated that they did know it was a violation to use such devices.

The cited coal standard, § 77.402, mandates that “Hand-held power tools shall be equipped with controls requiring constant hand or finger pressure to operate the tools or shall be equipped with friction or other equivalent safety devices.” By comparison, the analogous metal/nonmetal standard is §§ 56/57.14116, which states: “Power drills, disc sanders, grinders and circular and chain saws, when used in the hand-held mode, shall be operated with controls which require constant hand or finger pressure. … Circular saws and chain saws shall not be equipped with devices which lock on the operating controls.”

The issue was whether the language of the coal standard precluded the use of devices that could defeat the hand/finger pressure requirement. The judge found it significant that the tool was not observed in use and held that, since the grinder was equipped with a trigger requiring constant hand or finger pressure to operate it, there was nothing in the rule to indicate that the grinder could not also be equipped with a trigger locking device.

The Secretary of Labor had pointed to prior ALJ decisions to the contrary, but Judge Hodgdon pointed out that these are not binding precedent. The cited older cases also did not expressly address tools that had the two optional methods of operation.

The judge also took judicial notice of MSHA's contrary position 20 years ago, when it updated its metal/nonmetal standard, and wrote in the final rule's preamble:

Under the proposed rule, the standard would have prohibited the presence, as well as the use, of lock-on devices for each of these classes of power tools‥… The final standard recognizes that many power drills, sanders, and grinders are manufactured with lock-on devices as a standard feature. … Although the lock-on devices need not be removed, the standard continues to prohibit their use when the tool is operated in the hand-held mode. …53 Fed. Reg. 32496, 32511 (Aug. 24, 1988).

The judge found no reason why the same tools should be regulated differently at coal mines than at metal/nonmetal mines.

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