Msha General Safety Standards: Contesting the Citation
| Jurisdiction | United States,Federal |
| Citation | Vol. 06 No. 1989 Pg. 1105 |
| Pages | 1105 |
| Publication year | 1989 |
1989, June, Pg. 1105. MSHA General Safety Standards: Contesting the Citation
Discretion properly is the better part of valor in the conduct of most labor-related litigation. Unlike fees and costs, victory is uncertain given the variety of factual circumstances and malleable legal principles that affect employment issues.
Discretion particularly is warranted when litigating citations issued for violations of safety standards under the Federal Mine Safety and Health Act of 1977 ("Act").(fn1) The predictable application of specific safety standards and established legal principles and the limited availability of defenses discourage operators from litigating citations issued under the Act. There also prevails the beguiling administrative practice of the Mine Safety and Health Administration ("MSHA") to assess a nominal $20 civil penalty for violations not "likely to result in a reasonably serious injury."(fn2) Even though a citation may be barely meritorious, the operators' financial common sense often prevails over principle because of the low penalty. In terms of nuisance settlement value, economically sensitive operators see these nominal penalties as bargains when compared to foreseeable attorney's fees.
The reluctance to litigate such citations is also supplemented by the notion that "getting along" with MSHA inspectors requires "going along" with their citations. In part, this is attributable to an MSHA inspector's discretion to issue and terminate a citation or order and to assess negligence.
The combined force of all these factors frequently results in uncontested citations, for which the operator repeatedly will be penalized and reminded by MSHA.(fn3) Indeed, the operator is further dissuaded from contesting citations because of a procedural anachronism which allows the subsequently assessed penalty to be contested independently of the underlying citation.(fn4) While some kernels of wisdom may support these considerations, their persuasive value notably diminishes where a citation alleges the violation of a general safety standard and exposes the operator to significant civil or criminal penalties. In this circumstance, the operator would be better advised to contest the citation. This article identifies some legal defenses available in such a contest.
General mandatory safety standards have a conspicuous absence of measurable criteria against which compliance readily can be determined. For example, a general mandatory safety standard might exhort the operator to ensure that all "equipment defects" be corrected before placing mobile loaders and trucks into operation,(fn5) or to utilize tether lines whenever there is a "danger" of falling.(fn6)
The viability of a defense against a citation based on such a general standard depends at least on the following factors:
1. Whether an inspector's ad hoc application of a general safety standard is arbitrary, unreasonable and inconsistent with due process.
2. Whether reasonably prudent miners familiar with the industry and context of the alleged violation historically recognized and responded to the cited condition as a violation of the general safety standard.
3. Whether the cited condition can be shown by a preponderance of evidence to violate the general safety standard.
4. Whether negligence reasonably should be imputed to the operator where the cited condition historically was known to and approved by MSHA inspectors.
5. Whether a preponderance of evidence can establish that an employee's injuries resulted from the cited condition rather than independent, unforeseeable misconduct.
Although the peculiarities of fact patterns profoundly affect the disposition of such citations, the above list or a comparable analytical guide should be employed to determine whether a contest is indicated.
A mandatory general safety standard must be clearly worded, fairly administered and consistently applied so that a reasonably prudent operator can understand and follow it without risk of inconsistent, subjective and ad hoc interpretations.(fn7)
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