Aggregates Manager

May 2016

Aggregates Manager Digital Magazine

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AGGREGATES MANAGER / May 2016 39 Review Commission finds MSHA inspector abused his discretion with abatement timeline and citations. Arthur Wolfson is a member in Jackson Kelly PLLC's Pittsburgh office, practicing in the Occupa- tional Safety and Health Practice Group. He can be reached at 412-434-8055 or awolfson@ jacksonkelly.com. Preventing Abuse of Authority W hen does an MSHA inspec- tor abuse his or her discre- tion in setting an abatement deadline? A recent Federal Mine Safety and Health Review Commission (Commission) decision answered that ques- tion when it found that an inspector "failed to set abatement times that were…reasonably required for abatement" and subsequently is- sued § 104(b) orders when those times were not met. In Hibbing Taconite Co., Docket No. LAKE 2013-231, et al. (Rev. Comm. March 3, 2016), the Commission reversed an adminis- trative law judge and vacated four § 104(b) orders for that reason. An operator who has been issued a cita- tion during an MSHA inspection must fix the cited condition to abate the alleged violation and terminate the citation. That requirement is found in the Mine Act, where § 104(b) requires an operator who has been issued a citation to abate the "violation described in [the] citation issued pursuant to [Section 104(a)]." 30 U.S.C. § 814(b). In setting the abatement time, the issuing inspector must "describe with particularity the nature of the violation" and "fix a reasonable time for the abatement of the violation." 30 U.S.C. § 814(a). An operator must complete abatement within the time set by the inspector or request (and be granted) an extension of time to complete abatement. 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). In determining what amount of time is reasonably required for abatement, the in- spector should consider factors such as the extent of the violative condition, the availabil- ity of miners to undertake the corrective work, and competing safety concerns. Importantly, the inspector must consider the particular factors of the cited condition when setting an abatement time for that condition. Similarly, the inspector should also consider these fac- tors when deciding whether or not to grant a request for an extension of time. Should a re- sulting § 104(b) order be issued, the operator may challenge the reasonableness of the time set for abatement or the inspector's refusal to extend that time. Hibbing Taconite involved four § 104(b) orders issued to the mine operator after three § 104(a) citations were issued on Fri- day, Dec. 14, 2012. In addition, there was a previously issued § 104(a) citation for which abatement had been extended to Friday. On by Arthur Wolfson ROCKLAW

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