For clients and friends of Jackson Kelly PLLC
Volume 12, Number 5
©2016 Jackson Kelly PLLC
In a recent decision, the Federal Mine Safety and Health Review Commission reversed an Administrative Law Judge decision and vacated four Section 104(b) orders. In Hibbing Taconite Co., Docket Nos. LAKE 2013-231, et al. (Rev. Comm. March 3, 2016), the Commission found that the inspector had “failed to set abatement times that were based upon those times reasonably required for abatement.”
Section 104(b) of the Mine Act requires an operator to abate the violation described in a § 104(a) citation. When issuing a § 104(a) citation, the inspector must “describe with particularity the nature of the violation” as well as “fix a reasonable time for the abatement of the violation.” 30 U.S.C. § 814(a). Section 104(b) provides that an inspector shall issue a failure to abate order when the cited violation has not been “totally abated” within the abatement time originally fixed or as subsequently extended and, if he determines “that the period of time should not be further extended.” 30 U.S.C. § 814(b).
The inspector should consider the following factors in determining a reasonable abatement time: the extent of the violative conditions, the availability of miners to undertake the corrective work, and competing safety concerns. If a § 104(b) order is issued, the operator may challenge the reasonableness of the time set for abatement or the Secretary’s failure to extend that time.
Hibbing Taconite involves § 104(b) orders issued following the issuance of three § 104(a) citations issued on Friday, December 14, 2012, and another § 104(a) citation for which abatement had been extended until that day. On that day, the inspector set the abatement deadlines for the following day, Saturday, December 15, at 8:00 a.m. The inspector indicated that he had a personal policy of setting the abatement deadline for 8:00 a.m. on the day following a citation and the operator could expect such abatement deadlines for all citations he issued.
When the inspector returned on Saturday, December 15, the cited conditions had not been abated. The operator explained that it was in the process of cleaning the plant from top to bottom and the cleaning delayed its ability to address the cited conditions. The inspector disregarded this explanation and issued four § 104(b) orders.
The operator challenged the validity of the § 104(b) orders. The ALJ upheld them, but the operator appealed her decision. On appeal, the Commission reversed the ALJ’s decision, finding that the inspector’s policy of uniformly setting an abatement deadline for 8:00 a.m. the following day was contrary to the requirements that he fix an abatement time based upon “the time reasonably required for abatement of the specific conditions.” The Commission found the inspector’s deadline to be arbitrary and not based on the specifics of the condition. As a result, the Commission vacated the § 104(b) orders.
An operator faced with an abatement time that it believes to be unreasonable should explain to the inspector why it believes the deadline is unrealistic and what amount of time would be required to correct the condition. The operator should point out extenuating or unusual circumstances that may delay abatement. If an operator attempts to abate a citation and finds that it needs more time, it should ask the inspector for additional time and explain the basis for the request. The inspector must consider the specifics of the condition in fixing an abatement time or considering a request for more time. The inspector’s failure to do so may result in the order being vacated.
This article was authored by Arthur Wolfson, Jackson Kelly PLLC. For more information on the author, click here.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Kristin R.B. White
(303) 390-0006
The Jackson Kelly PLLC Occupational Safety & Health News-Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety & Health News-Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.
If you or others would like to receive future copies of the Jackson Kelly PLLC Occupational Safety & Health News-Alert via e-mail, please send your name, job title, and company name, along with your e-mail address, to Janet Kosman at jlkosman@jacksonkelly.com. You may also call her at (303) 390-0038.
If you wish to UNSUBSCRIBE to this legal news alert list, please reply to this e-mail and type the word ‘UNSUBSCRIBE’ in the subject line.
The Rules of the Kentucky Supreme Court require the following: THIS IS AN ADVERTISEMENT.
KRISTIN R.B. WHITE IS RESPONSIBLE FOR THE CONTENTS OF THIS ALERT.
Comments