Pit & Quarry, March 2010
Law Continued from page 26 By law mine operators may challenge MSHA enforcement by filing contests with the Federal Mine Safety and Health Review Commission Cases are initially heard and decided by administrative law judges who issue written decisions interpreting the law Appeals can be taken to the actual commission a panel of five commissioners appointed by the president and from there to the U S Court of Appeals In many instances reference to decisions is indispensable to determine meaning Case decisions often resolve questions such as those raised by No 6 on the list of events constituting an accident including In underground mines an unplanned fire not extinguished within 10 minutes of discovery in surface mines and surface areas of underground mines an unplanned fire not extinguished within 30 minutes of discovery Questions addressed might include When was the fire discovered Does it matter if the discovery was not known to supervisors or management at the time of first knowledge What if hourly personnel did not recognize that there was a reportable event What if they put out a fire without reporting it to management a grass fire in a field for example What if burning of vegetation was intentional but the flames got out of control for a period of time What if there was no flame associated with a particular event only smoldering What if flames were put out in five minutes but hot material was smoking for 35 minutes Depending on who prevails in a case MSHA or operators may have to change their practices to conform to the judicial determination This can be true even if MSHA has always interpreted the standard in a manner more favorable to operators or less favorable as the case may be Operators are upset by unannounced changes in enforcement policy MSHA may feel a need to change its interpretations and such changes may or may not be valid Regardless a crucial part of the process should be notice to the regulated parties The absence of notice is a problem with respect to recent changes concerning guarding of shafts and truck scales Since the goal is to achieve universal compliance publicizing new interpretations and giving operators a chance to come into compliance before they are confronted with enforcement changes would be constructive in all respects for MSHA as well as operators Certainly operators who are not given advance notice have a basis for legal challenge More importantly advance notice of valid changes promotes safety Legal editor Michael T Heenan is an attorney at Ogletree Deakins Nash Smoak Stewart one of the nations largest labor and safety law firms He can be reached at michael heenan@ odnss com www hillhead com Tel 44 0 115 945 3887 Email hillhead@ qmj co uk The Hillhead 2010 web site is now part of Agg Net com The Aggregates Recycling Information Network 28 PIT QUARRY March 2010 www pitandquarry com
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