January 29, 2023

Volume XIII, Number 29

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January 27, 2023

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Judge Steers Independent Course in Quarry Litigation

A Federal Mine Safety and Health Commission Administrative Law Judge has upheld seven of eight citations against an Illinois quarry operator while raising the negligence rating of four of them.

An authorized representative of the Mine Safety and Health Administration wrote 10 citations at Northern Illinois Service Co.’s Portable #1 and #2 Mines during inspection visits in April and July of 2012. MSHA vacated two of them, leaving eight for litigation.

Four of the tickets were for alleged violations of the agency’s standard at 30 CFR § 56.4501, which requires fuel lines on nonself-propelled equipment to be equipped with valves to stop the flow of fuel at the source. Challenging one such citation for not having a fuel shutoff valve between the engine and tanks of a secondary crusher, Northern Illinois contended the standard diminished safety because installing a valve would double the number of places a leak was likely to develop. Additionally, in the event of a fire, miners trying to shut off the value would be imperiled, it argued, because they would be encouraged to enter what the company called “a danger zone.” The operator made similar assertions for the other three violations of that standard.

In a decision dated July 7 (here), Administrative Law Judge L. Zane Gill stated that the operator’s arguments were “not a valid defense.” He said if the company felt the standard diminished safety, it should have sought a modification from the agency; however, nothing in the record suggested the operator had made such an appeal.

While siding with MSHA, in two instances, ALJ Gill nonetheless raised the negligence classification recommended by the inspector to high, from either low or moderate. He disagreed with the inspector’s justification that, because MSHA had never cited the operator for the infractions previously, Northern Illinois had not received fair notice of MSHA’s enforcement intent.

"[T]his [fair notice] consideration would make high negligence inapplicable to most citations, since they often have not been previously cited,” said Gill. The statement reflects his view that enforcement by MSHA inspectors is frequently inconsistent.

The judge also elevated the negligence classification on a citation for failing to conduct a continuity and resistance test after determining the company had contested a similar citation at another of its mines in 2011. Further, he raised the negligence level to high, from moderate, for the operator’s failure to set the parking brake on a pickup truck, because he said the operator was well aware of the requirement. He added that there were no mitigating circumstances, even though the vehicle was found in Park gear, on a level surface with chocked wheels and a disconnected battery. Moreover, the truck was parked in an area of the mine shop where there was very little mobile equipment movement and little foot traffic.

Gill affirmed a seventh citation for lack of a chain to secure a ladder opening on the deck of a crusher. But he dismissed a citation for non-functional brake lights on a front-end loader after determining that mine personnel had repaired the lights in a timely manner, as required by 56.14100(b), and noting that the inspector could not estimate how long the lights had been inoperable. For each of the seven upheld citations, he agreed with MSHA’s proposed assessments, which came to a total of $736.

Jackson Lewis P.C. © 2023National Law Review, Volume V, Number 208
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About this Author

Bradford T. Hammock, Jackson Lewis, workplace safety law attorney, Hazardous Conditions Lawyer
Principal

Bradford T. Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He focuses his practice in the safety and health area, and is co-leader of the firm’s Workplace Safety and Health Practice Group.

Mr. Hammock’s national practice focuses on all aspects of occupational safety and health law. In particular, Mr. Hammock provides invaluable assistance to employers in a preventive practice: (1) conducting full-scale safety and health compliance audits; (2) reviewing and revising corporate safety and...

(703) 483-8300
Henry Chajet, Jackson Lewis, health safety attorney, dispute resolution lawyer, overcharge recoveries legal counsel
Of Counsel

Henry Chajet is Of Counsel in the Washington, D.C. Region office of Jackson Lewis P.C.

Mr. Chajet counsels and represents clients in environmental, health and safety (EH&S) matters and antitrust matters, focusing on crisis management, dispute resolution, trial and appellate litigation, standard setting, liability prevention, regulatory and congressional proceedings and “direct purchaser” overcharge recoveries for corporate clients in antitrust price manipulation cases. He defends investigations and enforcement actions...

703-483-8300
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