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Judge Scolds MSHA over Part 46 Enforcement

Wed, 04/06/2011 - 12:16

Less than thrilled with MSHA's enforcement of training violations against a small dimension stone operator, an Administrative Law Judge (ALJ) suggested that the Agency review its Part 46 enforcement policy.

On June 30, 2009, an MSHA inspector issued two withdrawal orders against Picenos Brothers, the operator of King Quarry near Birmingham, AL. The enforcement action was taken because the operator had failed to complete form 5000-23 to certify that six miners had received mandated refresher training and that one miner had received new miner training. The Agency fined the operator a total of $8,073 for the two alleged training infractions and another $15,634 for three other alleged violations of its Part 56 standards. All three were classified as unwarrantable failure. The total assessment came to $23,707.

The operator did not dispute the violations, but contested the size of the proposed penalties. At a hearing last month, ALJ Jerold Feldman took the Agency to task for imposing what he believed were disproportionately high fines on the six-person mine. But he went further to question the issuance of the withdrawal orders, which were written due to the inspector's belief that the alleged lack of training meant the miners were a hazard to themselves and others.

The violations were abated after the operator completed the forms. However, the inspector never determined if any refresher and new miner training had been given to abate the orders and warrant allowing the miners to return to work. "The issuance of the subject 104(g)(1) withdrawal orders blurs the distinction between the failure to provide training and the failure to certify that such training had been given," Feldman wrote in his three-page decision March 29.

To support his point, Feldman described the circumstances surrounding issuance of the order regarding new miner training, which was written as high negligence. The enforcement action was directed at a miner whose principal job duties consisted of operating a bobcat and manually stacking pallets. The affected miner had been working at the mine for several months and apparently had received on-the-job training. While the inspector observed the new miner operating a bobcat, the federal agent failed to determine the nature and extent of the bobcat training previously provided to him, according to Feldman.

"The failure to ascertain the degree of training provided before and after the issuance of 104(g) orders relegates such orders to certification reporting violations rather than serious training violations," Feldman wrote.

The judge said the inspector's enforcement action thus "elevates form over substance and trivializes, rather than achieves, the purpose of training regulations." He called on the Secretary of Labor, which litigated the case on behalf of MSHA, to "revisit her method of enforcement of the Part 46 training regulations, particularly with respect to their application to very small mine operators."

Regarding the fine, at Feldman's urging, MSHA reduced the total assessment for all five violations to $20,000. Dissatisfied, the judge said the new amount still "did not adequately address the issue of proportionality." The parties eventually settled on a fine of $11,910, to be paid in 31 monthly installments.

MSHA's data retrieval system reveals that this operator received a non-S&S citation last month for failing to complete the 5000-23 training form. The alleged violation has yet to be assessed.

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