Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/468886
33 AGGREGATES MANAGER March 2015 Rock Collecting evidence during an MSHA inspection can make the difference when disputing a citation. Here are some guidelines on how to gather it. INFORMATION by Jessica M. Jurasko Jessica M. Jurasko is an associate in Jackson Kelly, PLLC's Pittsburgh office. Her practice is focused on occupational safety and health and mine safety and health. She can be reached at 412-434-8812 or via email at jmjurasko@ jacksonkelly.com. Wins Cases B ecause the Mine Act is a strict liability statute, liability is not attributed to an operator in the way many persons would expect. Rather, it means liability without fault. It is not simply a matter of right or wrong with respect to how MSHA violations are is- sued. A mine operator may have done noth- ing wrong or had no reason to know about a violation, but it is still liable for compliance with all the standards in the Code of Federal Regulations (30 C.F.R.) that apply to that par- ticular mine. Two areas in evaluating enforcement ac- tions involve gravity and negligence. Gravity addresses how serious a violation is (likeli- hood, significant & substantial, how many miners affected, expected injury, etc.), and negligence describes what degree of fault should be designated against the operator in committing the violation. It is extremely important to have an individual who escorts the inspector be knowledgeable about compliance and what is being evaluated by the inspector. Thus, gathering evidence during the inspection be- comes the most critical piece of challenging the issuance of the citation or order. The first question to ask is "was there a violation?" If the argument is that there was no violation, then the information to be gathered should tell the story as to why no violation existed. Assuming there was a violation, however, we must inquire as to whether it was properly assessed by the inspector with regard to gravity and negligence. As to the negligence, there are several key factors to consider when traveling with an inspector or if one is involved in the facts and circumstances leading up to issuance of a citation. First, try to determine when the condition occurred. It may be true that the condition existed, but for how long? Also, figure out whether or not the cited condition was created by an hourly employee without the knowledge of management or if it had occurred since the last examination that was conducted. Next, it is important to ascertain whether or not the condition was obvious; consider if the area cited is not routinely in- spected or traveled or if the equipment is not used regularly. All of the answers to these questions, as well as assurance that the mine is keeping solid and accurate exami- nation books, will help serve as mitigating factors in any challenge to an inappropriate negligence evaluation. Good recordkeeping is vital to contesting a citation and, in particular, the negligence designation. This is especially true when