Is your MSHA inspector issuing citations with short abatement times regardless of how long it will take to fix the cited conditions? According to a recent legal decision, MSHA inspectors cannot simply set an arbitrary time for requiring abatement of a citation. Instead, the Federal Mine Safety and Health Review Commission ruled last week, under the Mine Act, the inspector must set a “reasonable time” for abating conditions.
The case, Secretary of Labor v. Hibbing Taconite Co., LAKE 2013-348-M (Commission 2016), involved an inspector who routinely set abatement for 8:00 am on the morning after issuing a citation. Meanwhile, the inspector admitted that it was not possible to complete the abatement he demanded in that time. Overturning an ALJ decision, the Commission found such citation-writing practices to be an abuse of discretion. The judges vacated orders that the inspector had issued for failing to comply with his artificial abatement times.
The inspector universally set abatement for 8:00am the next morning, but he admitted that it was not possible to complete the abatement by then.
This decision is significant because of an apparent trend recently of inspectors setting short abatement times and then simply extending those times based on observing progress. The inspector in Hibbing testified that he universally set abatement for the next morning because he feared that otherwise, mine operators would procrastinate. He “did not want to give an abatement time of three days and have the operator not take any action on abating the condition until the third day.”
The Commission said that his intent to achieve prompt corrective action was “commendable” but that the Mine Act does not allow an inspector to use the abatement requirement to force prompt abatement within a time period that is otherwise unreasonable.
The next time you believe an inspector is not being reasonable about abatement times, pull out the Hibbing case.