Occupational Safety and Health NewsAlert

ALJ RULES MSHA’S “REPEATED” FLAGRANT CRITERIA INVALID

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 26
©2011 Jackson Kelly PLLC

 

         A Federal Mine Safety and Health Review Commission Administrative Law Judge (“ALJ”) recently found MSHA’s policy setting forth the criteria for determining “repeated” flagrant violations to be invalid, both because it constitutes a formal rule that was enacted without notice-and-comment rulemaking and because it is inconsistent with the language of the MINER Act. In an Order issued in Conshor Mining, LLC, Docket Nos. KENT 2008-562 and KENT 2008-782 (ALJ Feldman Nov. 28, 2011), Judge Jerold Feldman rejected MSHA’s reliance on its criteria for determining a “repeated” flagrant violation.  A flagrant violation is subject to a penalty of up to $220,000.

 

COMMISSION ESTABLISHES TEST TO DETERMINE WHETHER THIRD-PARTY AUDITS ARE PROTECTED BY PRIVILEGE

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 21
©2011 Jackson Kelly PLLC

 

          In Secretary of Labor v. Delek Refining, Ltd., OSHRC No. 09-0844 (July 11, 2011), the Occupational Safety and Health Review Commission (“Commission”) established a three-part test to determine whether the attorney-client privilege applies to third-party communications.  This was the first time the Commission had addressed the issue.  The case arose after an explosion occurred at a facility owned and operated by Delek Refining, Ltd. (“Delek”).  OSHA inspected the facility after the explosion and issued two citations, one serious and one willful, alleging that Delek violated the process safety management (“PSM”) standard.

ALJ INVALIDATES SAFEGUARD FOR FAILURE TO IDENTIFY HAZARD

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 20
©2011 Jackson Kelly PLLC

 

     In a recent decision, a Review Commission Administrative Law Judge invalidated a safeguard at an underground coal mine because it did not identify with specificity the nature of the hazard to which it was addressed.  In Big Ridge Inc., Docket Nos. LAKE 2008-436 et al. (ALJ Melick Sept. 8, 2011), Judge Melick upheld the mine operator’s challenge to the safeguard and vacated the resulting citation. 

ALJ HOLDS THAT METHANE LEVELS EXCEEDING 1.0% AT AUXILIARY FANS ARE NOT PER SE VIOLATIONS OF 30 C.F.R. § 75.331(c)

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 18
©2011 Jackson Kelly PLLC

        On August 2, 2011, Administrative Law Judge Richard W. Manning issued a decision vacating two § 104(a) citations alleging violations of 30 C.F.R. § 75.331(c) in Bowie Resources LLC, Docket No. WEST 2009-898. 

 

ALJ FINDS THAT HISTORY OF § 75.400 VIOLATIONS IS NOT SUFFICIENT TO SUPPORT “FLAGRANT” DESIGNATION

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 17
©2011 Jackson Kelly PLLC

 

           On July 27, 2011, Administrative Law Judge Richard W. Manning issued a decision in Bowie Resources LLC,  Docket No.  WEST  2008-814, a case arising from the issuance of a § 104(d)(2) order alleging  a  violation  of  30 C.F.R. § 75.400.  The  Secretary  designated  the  alleged  violation  as “flagrant,” under § 110(b)(2) of the Mine Act.   Judge Manning held that no flagrant violation occurred. 

 

ADMINISTRATIVE LAW JUDGE DISMISSES CIVIL PENALTY PROCEEDINGS DUE TO SECRETARY’S LATE FILING OF THE PETITIONS FOR ASSESSMENT UNDER THE MINE ACT

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 16
©2011 Jackson Kelly PLLC

 

            On August 22, 2011, Administrative Law Judge Thomas P. McCarthy granted a coal mine operator’s motions to dismiss seven Civil Penalty Proceedings due to the Secretary of Labor’s failure to timely file the petitions for assessment. Secretary of Labor v. Long Branch Energy, Civil Penalty Proceedings Docket Nos. WEVA 2010-467; 652; 466; 653; 654; 2009-1788.  In each case, the operator had filed a timely penalty contest to the proposed penalties pursuant to Federal Mine Safety and Health Review Commission (“Commission”) Rule 26.  The Secretary failed to file the petitions for civil penalties within the required forty-five days of receipt of the operator’s contests and did not file a request for an extension of time in which to do so.  The Secretary’s filings ranged between seven and eleven months late.  Judge McCarthy ordered that the motions to dismiss be argued orally before him in June, after limited discovery regarding the Secretary’s proffered excuses for late filing. 

 

ALJ RULES THAT VIOLATIONS OF SAFEGUARDS CANNOT BE S&S

For clients and friends of Jackson Kelly PLLC
Volume 16, Number 2, Winter 2008
©2008 Jackson Kelly PLLC

            Citations that allege violations of safeguards cannot be designated significant and substantial (“S&S”), a Commission Administrative Law Judge recently ruled.  In Big Ridge, Inc., Nos. LAKE 2008-68 & LAKE 2008-69 (Nov. 24, 2008)(ALJ), Administrative Law Judge Michael Zielinski granted the operator’s Motion for Partial Summary Decision and amended two citations that had been originally written as S&S to non-S&S.  The underlying safeguards had been issued pursuant to 30 C.F.R. §§ 75.1403-5(g) and 75.1403-10(i), respectively.

WELDING FUMES DO NOT COUNT AS RESPIRABLE DUST, ADMINISTRATIVE LAW JUDGE RULES

For clients and friends of Jackson Kelly PLLC

Volume 16, Number 1, Summer 2008

©2008 Jackson Kelly PLLC

 

             A FMSHRC Administrative Law Judge (“ALJ”) recently ruled that welding fumes do not constitute “dust” that is regulated by the respirable dust standards.  In Powder River Coal, LLC, No. WEST 2007-100-R (July 10, 2008)(ALJ), MSHA cited the operator for an average concentration of respirable dust that exceeded the 2.0 mg/m³ standard.  The designated work position cited was 306 (non shop welder), which essentially includes all surface welders.  The citation alleged a violation of 30 C.F.R. § 71.100, which requires that “each operator shall continuously maintain the average concentration of respirable dust in that mine atmosphere during each shift to which each miner in the active workings is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air.”  Powder River argued that the violation did not exist because the sampling results were seriously affected by welding fumes and, therefore, did not constitute “respirable dust.”  The Secretary countered that all particles collected on the filter are, by definition, respirable dust, including particles on the filter accumulated as a result of welding operations.