Willa Perlmutter Discusses Degrees of Severity of MSHA Mining Citations

In an article for North American Mining, Willa Perlmutter looks at the degrees of severity with which the Mine Act categorizes violations and how those classifications can sometimes be misapplied.

Perlmutter, chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group, describes a scenario in which a group of mine workers was installing a guard rail on a piece of equipment as required by a MSHA inspector as a condition of terminating a citation. At one point in the process, the operator of a loader the group was using to aid in the installation left the machine unattended to assist the other workers.

An MSHA inspector who was at the mine to terminate the original citation wrote up the group multiple times, including for a significant and substantial (S&S) violation of § 104(d)(1) of the Mine Act, alleging that the company had “unwarrantably failed” to comply with federal regulations. The inspector also cited the supervisor, though he arrived at the job site with the inspector and was thus not present to stop the violation before it occurred.

In settlement discussions with the MSHA Solicitor’s Office, Perlmutter asked that the citation be reduced to non-S&S (an S&S violation is one in which the violation is reasonably likely to lead to a serious injury) and that the allegation of an unwarrantable failure (an action taken with reckless disregard for safety or that was intentional misconduct) be removed. The MSHA lawyer modified the citation as Perlmutter requested in the first instance but left in place the unwarrantable failure allegation.

“She’s simply wrong. The supervisor discovered the violation at the same moment the inspector did,” Perlmutter wrote. “Of course he did not know it was going to happen until it did; once he and the inspector saw the loader operator exit the loader, they both shouted at him to go back and do things right.”

Perlmutter concludes: “As a result of the inspector’s misapplication of the law, amplified by a lawyer in the Solicitor’s Office who, frankly, isn’t any more clear on the concept than the inspector is, the company faces elevated enforcement. The supervisor in question has been tagged with an agent penalty under § 110(c) of the Mine Act, and his many years of exemplary experience have been marred by an unfair and factually incorrect accusation.”

Read the full article here.