Pit & Quarry, November 2018

MSHA THE LAW BY BILL DORAN AND MARGO LOPEZ WHY SUSPICION ISNT ENOUGH A federal court of appeals issued a decision that serves as a reminder that the Mine Safety Health Administration MSHA really does in court have the burden of proving a violation occurred A mere suspicion that a violation exists without evidence is not enough to establish a violation In Bussen Quarries v Secretary of Labor MSHA claimed the mine operator Bussen violated the fall protection standard at 30 C F R 565005 The MSHA inspector cited the operation after he observed a blasting crew working on top of a highwall The inspector saw that a two wheel pump cart used to pump water out of drill holes for blasting was located about four feet from the edge of the highwall The court stated that the Mine Act does not permit a citation based on mere speculation that a violation that has not yet occured could happen in the future The inspector told the lead blaster he was concerned the pump cart was too close to the edge The blaster then swung the pump cart around and positioned it toward the highwall so the handle faced away from the edge The inspector issued a fall protection citation alleging that with the carts handle facing the highwall edge a person working with the cart would have to stand too close within two to three feet from the edge with their back to the drop off At trial the lead blaster testified that in fact earlier that shift he had placed the pump cart in a different location farther from the walls edge Later to move the cart out of the way the lead blaster spun the cart around and it came to rest where it was located when the inspector arrived The blaster testified he was at least seven feet away from the edge when he moved the cart in compliance with company fall protection policy The inspector testified that given the position of the carts handles which were facing the highwall someone would have to walk between the pump and the highwall to move the cart Critical to the ultimate outcome in the case the inspector admitted he never saw anyone walk between the cart and the edge The administrative law judge ALJ issued a decision finding Bussen violated the fall protection standard The ALJ based this on the position of the pump and the absence of any warning signs near the edge The ALJ acknowledged it was difficult to know whether the pump would have been used that close to the edge but found that the inspector had made reasonable inferences that miners could have gone near the edge to use or move the pump On appeal the Federal Mine Safety Health Review Commission issued a split decision with two commissioners upholding the citation and two concluding there was not substantial evidence to support a violation Bussen then appealed the case to the United States Court of Appeals for the Eighth Circuit CONJECTURE VERSUS EVIDENCE The court of appeals noted it was MSHAs burden at trial to prove by a preponderance of the evidence that Bussen violated the fall protection standard and said it would uphold the ALJs findings of fact if the findings were supported by substantial evidence on the record as a whole The court noted that substantial evidence means more than simply a suspicion that the fact exists The court found MSHA did not present any evidence to show the lead blaster walked between the pump cart and the highwall edge The citation was based on an inference that since the cart was there the blaster must have walked close to the edge to place it there The court noted though that the inspector was standing next to the blaster when the blaster pulled the cart away from the edge thus showing that the cart could be moved without going between the cart and the edge There were no fresh footprints at the edge and there was a company policy establishing a safe distance from a fall hazard The court also faulted the ALJs decision where it suggested the carts location could cause miners other than the lead blaster to approach the edge of the highwall The court stated that the Mine Act does not permit a citation based on mere speculation that a violation that has not yet occurred could happen in the future P Q Bill Doran and Margo Lopez are with the national labor employment and safety law firm Ogletree Deakins They can be reached at william doran@ ogletree com and margaret lopez@ ogletree com 80 PIT QUARRY November 2018 pitandquarry com