February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Citing Mine Inspector’s ‘Animus,’ Administrative Law Judge Softens Tough Enforcement Action

Convinced that the tough enforcement action brought against a West Virginia coal operator by an inspector for the Mine Safety and Health Administration was influenced by a long-standing grudge the inspector held toward the operator’s foreman, a judge has reduced the seriousness of some alleged violations, thrown out others, and cut the proposed penalty by 73 percent.

“The credible testimony in the instant case indicates that MSHA inspector [name] overtly displayed animus toward foreman [name] for prior discipline that [inspector] received pursuant to [foreman’s] recommendation when both worked at the Old Hickory Mine years earlier,” Administrative Law Judge Thomas McCarthy said in a 57-page decision involving Eagle Creek Mining, LLC. Sec’y of Labor-MSHA v. Eagle Creek Mining, LLC, Docket No. WEVA 2013-1149 (May 16, 2016).

During April and May 2013, an MSHA inspector cited Eagle Creek for 13 alleged violations at the operator’s No. 5 surface mine in Logan County. The parties eventually agreed to settle eight of the alleged violations. The remaining five in dispute involved mobile equipment, with four of the five alleging violations of the requirement that mobile or stationary equipment be maintained in safe operating condition (30 CFR 77.404(a)). The fifth citation alleged a failure to correct defective equipment before it is used, in violation of 30 CFR 77.1606(c). The inspector classified each violation as serious (i.e., significant and substantial (S&S)) and four of the five as reasonably likely to lead to a fatality. MSHA set the total penalty at $48,711.77.

In questioning the inspector’s motivation, ALJ McCarthy credited Eagle Creek’s evidence indicating the inspector’s animus toward the operator’s foreman, which purportedly arose from an event nearly 20 years earlier. At the time, the foreman worked as a shift superintendent at Old Hickory, while the inspector was a unionized miner there. The shift superintendent recommended that the miner and three others be suspended, with intent to discharge, following the superintendent’s investigation of an incident in which mining equipment was willfully damaged.

The miner subsequently was suspended without pay for a month, but was reinstated with back pay and his personnel record expunged of the disciplinary action in an arbitration proceeding. At the hearing before ALJ McCarthy, the inspector denied he was ever recommended for discipline, took any grievance to arbitration, or lost work while employed at Old Hickory.

At the 2013 inspection, the inspector cited the operator for alleged defects on four haul trucks, taking them out of service. Besides the foreman, other witnesses for Eagle Creek testified that the inspector’s comments to them during that inspection and during previous ones suggested the MSHA official was pursuing a personal vendetta against the foreman. “Based on the totality of this record, I infer that [inspector] was talking about smothering [foreman] with paper,” McCarthy concluded.

Against “the foregoing backdrop of [inspector’s] animus toward [foreman],” McCarthy proceeded to dismantle many of the charges in the five citations. He threw out 10 of the 16 allegations associated with four citations addressing the condition of the haul trucks and reduced the S&S classification of one citation to non-S&S. However, he sustained all four of the inspector’s allegations concerning problems with the brakes and a water bed bracket on a water truck. McCarthy cut Eagle Creek’s total fine to $13,160.

The judge also determined that the inspector “prevaricated certain abatement steps and cursorily checked abatement measures.” For instance, after alleging excessive slack in the steering of a haul truck as well as defects to two gauges and a brake warning light, the inspector asserted the alleged defects were corrected by installing replacement parts. However, Eagle Creek’s chief mechanic credibly testified that only one of the four alleged defects was corrected this way.

Calling the inspector’s behavior an “abuse of position,” McCarthy stated, “This irresponsible conduct by an MSHA inspector does a large disservice by undermining public faith in the agency’s critical inspection process.”

The case illustrates the need for mine operators to record carefully and concisely what enforcement officials say and do during an inspection and to seek legal advice and representation when considering challenges to citations.

Jackson Lewis P.C. © 2023National Law Review, Volume VI, Number 159

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