Here’s an all-too-familiar story with an all-too-uncommon ending. An MSHA inspector saw equipment positioned a certain way, assumed that someone had used it unsafely in that position, and issued a citation. A judge then upheld the citation by giving more weight to the inspector’s assumption than to the worker’s sworn testimony about how he acted safely. But, in this case, the mine operator refused to accept that unfair result. They appealed… and won.
In December of 2014, MSHA issued a citation to Bussen Quarries (a limestone mine in Missouri) under 30 CFR 56.15005, for failures to wear safety belts and lines when working near a highwall. MSHA has developed a Power ]Point regarding compliance with this standard, which defines the Fall Hazard Zone requiring a tie off when working within six feet of the crest. Bussen’s policy was that miners were to tie off even more conservatively – when within seven feet of the crest.
An MSHA inspector arrived at Bussen’s highwall when a four-person blasting crew was working in the area. The crew had brought a pump cart (to de-water holes), and the pump cart was moved to approximately four-and-a-half feet from the edge of the highwall, with the cart handles pointing toward the edge.
When the inspector arrived, he asked to speak about the location of the pump. The lead blaster then reached for the pump and moved it further away from the highwall and spun the cart so the handles no longer faced the highwall. When the inspector asked about fall protection, the lead blaster confirmed it was available in the truck but that he had not worn it when moving the pump. At that point, the inspector issued an S&S, high negligence citation based on the assumption that the miner had gotten too close to the edge.
The mine challenged the citation and went to a hearing. In her decision, Administrative Law Judge Margaret Miller refused to credit the lead blaster’s testimony on a number of points. She agreed with the Secretary that the initial repositioning of the cart indicated that at some point the lead blaster was likely within six feet of the edge of the highwall without being tied off. However, this contradicted the lead blaster’s testimony that he was at least seven feet away from the edge when he moved the pump cart to its location because his feet were near the drill holes, which were eight feet from the highwall.
A judge accepts the inspector’s assumption over the worker’s eyewitness testimony
Judge Miller affirmed the the citation and the high negligence and S&S allegations, stating that she agreed with the inspector’s reasonable inferences that the other miners could have used or moved the pump from its location near the edge, requiring the miner to enter the fall hazard zone. The decision was then appealed to the Federal Mine Safety and Health Review Commission, which issued a split decision – two Commissioners voted to affirm Judge Miller’s decision, and two others voted in favor of vacating the citation. The effect of a split decision is to allow the Judge’s decision to stand as issued.
The operator appealed… and won
Bussen then appealed to the Eight Circuit Court of Appeals. The question at issue for the court was whether substantial evidence supported a finding of violation. The Eight Circuit pointed out that it is not the operator’s burden to prove that it did not violate the regulation; it is the Secretary’s burden to establish that a violation occurred. In this case, the Eight Circuit held the Secretary failed to meet his burden.
The Court of Appeals noted that in the absence of actual evidence showing that the lead blaster walked between the pump cart and the highwall, the ALJ’s inference that he walked in an area where there was a danger of falling was unreasonable because it was based on nothing more than suspicion, which is legally insufficient.
In its decision, the court made clear that the Secretary cannot rely upon mere speculation and conjecture that a violation occurred: “To uphold a citation in such circumstances would flip the burden of proof and be fundamentally unfair to mine operators such as Bussen.” The court pointed out that by reaching this conclusion they do not endorse a view that an MSHA inspector must personally observe a violation in order to hold a mine operator in violation of a safety standard. An MSHA inspector still may be able to prove a violation by witness statements, circumstantial evidence, past practices, or the absence of company policy. He just can’t do it with a mere assumption.
This case is a significant win for operators. Use it! When conferencing or challenging a citation that you believe the agency lacks evidentiary support, cite to Bussen Quarries, Inc. v. Secretary of Labor, Eight Circuit Court of Appeals, July 16, 2018.