Aggregates Manager

May 2016

Aggregates Manager Digital Magazine

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AGGREGATES MANAGER / May 2016 41 Friday, the inspector set the abate- ment deadline for the following day, Saturday, Dec. 15, at 8 a.m. The inspector indicated that he had a personal policy of setting the abate- ment deadline for 8 a.m. on the day following issuance of a citation and that the operator could expect such abatement deadlines for all citations he issued. When the inspector returned to the mine on Saturday, Dec. 15, the cited conditions had not been abated. The operator explained that it was in the process of cleaning the plant top to bottom and this clean- ing delayed its ability to address the cited conditions. The inspector disregarded this explanation, refused to extend the abatement times, and issued four § 104(b) orders. The operator challenged the validity of the § 104(b) orders. The administrative law judge upheld the orders, and the operator appealed her decision. The operator argued that the inspector arbitrarily set abatement times and his refusal to extend the abatement deadline was unreasonable, given the particular circumstances of the cited condi- tions. On appeal, the Review Com- mission reversed the administrative law judge's decision, finding that the inspector's policy of uniformly setting an abatement deadline for 8 a.m. the following day was contrary to the requirements that he fix an abatement time based upon "the time reasonably required for abate- ment of the specific conditions." The Commission found the inspector's deadline to be arbitrary and not based on the specifics of the condi- tion. As a result, the Commission vacated the § 104(b) orders. The decision is significant be- cause it reinforces that inspectors must set abatement times that are both "reasonable" and based upon the specifics of the cited conditions. It also reinforces why the company escort must play an active role in the inspection process. When a cita- tion is issued, the company escort should ask the inspector about the time allotted for abatement. The company escort should point out to the inspector particularities about the cited condition that may cause abatement to be delayed. It is best for this conversation to occur when the citation is being issued. Most in- spectors will work with an operator who demonstrates a good faith effort to abate the condition as quickly as it can. However, if the inspector is inflexible about abatement time, as in Hibbing Taconite, the company escort should document the conver- sation with the inspector in case a challenge becomes necessary. If abatement time has already been set and an operator is faced with a deadline that it believes to be unreasonable, it should explain to the inspector why it believes the deadline to be unrealistic and what amount of time would be required to correct the condition. If an opera- tor has attempted to abate a citation and finds that it needs more time, it should ask the inspector for ad- ditional time and explain the basis for the request. It should document all efforts it has made to abate the condition. Here, too, the inspector must consider the specifics of the condition in considering a request for more time. Should the inspec- tor fail to consider these specifics and refuse to grant an extension for abatement time, the resulting § 104(b) order may be vacated. AM ROCKLAW THIS YEAR'S ACTIVITIES: FREE ADMISSION ONLY WHEN YOU PRE-REGISTER!* Register online at GATSonline.com or call 888-670-7549. *Onsite registration is $10 REGISTRATION SPONSORED BY • Best of show winners from the past Pride & Polish events compete for the grand prize • Show trucks from across the country on display • Free health screenings • Cooking demos • In-cab fitness demos • Healthy food options • Health-related vendors TA-PETRO TAILGATING AT GATS • FREE Truck Parking • Shuttle bus transportation to convention center • Showers, food vendors and exhibitor demos • RV parking (no hook-ups) • Daily meet and greets and celebrity appearances • Live performances at the booth • Prize giveaways and drawings

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