Mining commission vacates inspector’s orders

The Federal Mine Safety and Health Review Commission has vacated orders alleging a Minnesota mine operator failed to abate citations within the time set by an inspector, holding that the inspector abused his discretion by setting arbitrary abatement times. Sec’y of Labor v. Hibbing Taconite Co., Nos. LAKE 2013-231-RM, et al., (Mar. 3, 2016).

This decision may curtail the recent practice by some inspectors of setting short abatement periods and then extending them based on observations of progress.  writes Avi Meyerstein at law firm Jackson Lewis.

Federal mining law requires a mine operator to abate an alleged violation, and to do so within the time set by the mine inspector. If the cited violation has not been “totally abated” within the time originally fixed, or as subsequently extended, by the inspector, and, if the enforcement official determines the time should not be further extended, the inspector must issue a failure to abate order.

This order requires withdrawal of all but essential personnel from the area affected by the alleged violation until the condition is fully corrected.

Legal precedent provides that the inspector is to consider three factors in setting a reasonable abatement time: the extent of the violating conditions, the availability of miners to undertake the corrective work, and competing safety concerns. The operator may challenge the reasonableness of the time set for abatement or the inspector’s failure to extend that time. Hibbing Taconite Co. cited both of these factors in protesting four failure-to-abate orders it received in December 2012.

An inspector for the Mine Safety and Health Administration alleged Hibbing had failed to meet his deadlines for abating three housekeeping infractions as well as a citation for allegedly maintaining a metal housing improperly on an exhaust fan. A judge upheld the four orders.

In its unanimous ruling on Hibbing’s appeal, the Commission reversed the judge and vacated the four orders, holding that “[t]he inspector’s issuance of the failure to abate orders was based on a misunderstanding of the law, and amounted to an abuse of discretion.”

The commissioners called attention to the inspector’s testimony in which he stated that, to ensure the operator initiated abatement quickly, he universally sets abatement times of 8:00 a.m. the morning after he verbally issues citations. However, in field notes in which he referenced a discussion with a mine official about his abatement time “policy,” he admitted that some violative conditions could not be corrected by that deadline.

The Commission described one example to support its finding. The inspector cited Hibbing for a housekeeping violation at approximately 5:30 p.m., then set the cleanup deadline for 8:00 a.m. the next morning. When that time passed without resolution, he issued an extension until 8:00 a.m. the next morning, then again to the same time on the third day. But, due to the immensity of the project, abatement did not end until six days after the citation was written.

“We conclude that the inspector did not fix the abatement times based upon ‘the time reasonably required for abatement of the specified conditions,’ as he is required to do by the Mine Act and Commission precedent,” the panel stated.

The law is clear that inspectors must set a “reasonable time” for abatement of the violations they cite. The Commission’s ruling means that an inspector may not use the abatement requirement for the purpose of encouraging prompt abatement when the time is otherwise unreasonable.Jackson Lewis attorneys are available to answer inquiries regarding this and other workplace developments.

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