December 9, 2019

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Hoover Excavating & Trucking, Inc.

WEST 2019-0268 (Nov. 13, 2019) (ALJ Miller)

MSHA inspectors arrived at the mine in February 2019 to conduct an inspection and noticed that blasting had occurred recently. Because of past history of enforcement actions related to blasting activities the inspectors requested to inspect a truck that was hauling explosives. The mine owner refused the request and promptly moved the truck to a parking lot across the street from the mine. The inspector then received guidance from his supervisor to notify the mine owner that local authorities would be called about possible transportation of explosives in the truck. After being informed the mine owner permitted inspection of the truck.

Nevertheless, MSHA issued an enforcement action for a violation of Section 103(a) of the Mine Act for refusing to allow MSHA to inspect the truck before moving it off of mine property. The mine owner testified that the parking lot was still on mine property and he moved the truck in order to get it out of the way of what was going on in the pit.

Judge Miller upheld the violation of Section 103(a) because the evidence revealed the mine owner refused to answer questions about the truck and then moved it when MSHA inspectors were actively attempting to inspect the vehicle during the course of their inspection of the mine. As a result, Judge Miller upheld the finding of high negligence because “an operator’s intentional violation constitutes high negligence for penalty purposes.”

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About this Author

Jason M. Nutzman, Dinsmore Law, Labor Lawyer, Mine Safety Attorney
Partner

Jason Nutzman is a member of the Labor & Employment Department and Mine Safety & Health Practice Group. Jason represents clients before the Federal Mine Safety and Health Review Commission in accident investigations, special investigations, and discrimination investigations conducted by the Department of Labor with respect to the
Mine Safety and Health Act.

In his practice, he works with human resource managers and in-house counsel providing employment advice and litigation support to employers. Jason also provides employment counseling to employers from the beginning...

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