Judge Whacks Operator over Behavior of Its Safety Director
Submitted by jsharpe on Mon, 09/09/2013 - 4:15pm
A mine operator faces a fine many times higher than the one initially imposed by MSHA after the operator's safety director allegedly engaged in hostile and intimidating behavior toward a federal inspector.
Administrative Law Judge Margaret A. Miller imposed a $25,000 fine for two citations against (Name redacted - $afepro). MSHA had originally proposed a $1,112 assessment.
Arriving in June 2012 at the (Firm Name redacted) in response to a hazard complaint, an MSHA inspector found himself confronted by the safety director. Upon receiving a copy of the hazard complaint, "The Safety Officer immediately became angry, called the complaint 'bullshit', and subsequently engaged in activity that interfered with the inspection," Judge Miller wrote in her Sept. 5 decision.
During the course of the inspection, the Safety Director continued to engage in verbally aggressive and intimidating behavior toward the inspector. The inspector issued a citation for impeding his inspection after the SD refused the inspector's request to review pre-operational inspection forms for a crane. "The inspector issued Citation No. ********* after enduring the yelling, cursing, intimidation and aggressive behavior of the mine's safety manager", Judge Miller wrote.
The inspector eventually decided to leave the property. At some point, the SD instructed a subordinate to call the sheriff, contending the inspector had no business on the property because he had completed his inspection. The inspector, in turn, called his supervisor.
After the sheriff and the supervisor arrived and discussions were held, the inspector continued his inspection but with another safety representative, not the Safety Director. According to Miller, the inspector had made clear that the SD was to stay away from the inspector during the time it took for the inspector to complete his hazard complaint investigation.
The inspector returned the next day to resume his inspection. While it was underway, the SD joined the inspection party. He refused to permit the inspector to conduct a torque test on a lube truck, prompting the inspector to tell the SD his impeding citation was still in place and was intended to keep the SD away during his inspection.
The inspector also issued a failure-to-abate order under Sec. 104 (b) of the Mine Act after giving the SD the opportunity to leave. According to Miller, the enforcement action came after both the inspector and his supervisor had spoken to the acting mine manager, who supported the Safety Director.
"After the order was issued, mine personnel told MSHA they would not comply with it", Miller said. That brought the threat of another ticket for working in the face of an order, a move that brought another defiant response from the SD. Miller recounted a brief phone conversation between the SD and the inspector's supervisor, about compliance with the "b" order. “The SD was asked to comply and not interfere with the inspection, but the SD responded 'f*** no' and hung up," Miller wrote. The inspection was completed after the inspector returned for a third day, this time accompanied by his field supervisor and Assistant District Manager.
At the hearing, the Safety Director insisted he had explained to the inspector that his job was to accompany the inspector and that MSHA could not keep him from doing his job as a representative of the mine. But Judge Miller said other safety personnel could have stood in for the SD. She discounted the SD's overall testimony because she believed he was not credible.
Miller raised MSHA’s $112 proposed fine for the alleged impeding violation to $10,000 and the agency’s $1,000 fine over the order violation to $15,000.