NSSGA is pleased with a unanimous decision from the Mine Safety and Health Review Commission that an MSHA inspector erroneously issued two citations to D&B Drilling in 2012. The commission let stand an administrative law judge’s ruling from 2013 that said the inspector erred by issuing citations for an operator allegedly not attending his drill, standing at times between 10 and 20 feet away.
NSSGA submitted an amicus brief in September 2013, drafted by Jason Nutzman of Dinsmore, supporting the judge’s determination that the inspector’s interpretation of “attended” (taken from 30 USC 56.7012 / ‘tending drills in operation’) was plainly erroneous and not entitled to deference. The brief further argued that concurrence with the inspector’s interpretation would necessitate sweeping changes in the drilling sector that would be financially detrimental and extraordinarily dangerous. The commission relied on NSSGA’s brief as a key factor in affirming the ALJ’s ruling that the inspector erred when issuing the citations.
“We knew of too many complaints of errant citations, and we also knew that the problems of these actions, taken both by an MSHA inspector and the solicitor, risked harming many of our operators and drillers,” said Joseph Casper, NSSGA vice president of safety. “We saw this as a case in which NSSGA could reiterate its belief that enforcement should be done well, and in a manner consistent with the letter and spirit of the standard.”
The commission ruled Monday, Feb. 22, that the inspector had been wrong for asserting that “attending” a drill requires drill operators to remain within arm’s reach of drill controls. This is because a drill operator must perform maintenance on the drill or check the for ground stability, and this requires that an operator go away from the drill at times. Further, there was evidence that the operator was in fact attending the drill, contrary to the inspector’s citations. The decision lauded the research showing the various safety functions needing to be performed some distance away from the drill. The law firm of Adele Abrams litigated the case.
“We were frustrated that rather than improving inspector consistency, MSHA was intent on appealing an ALJ decision that was clearly a sound one,” Casper said. “This case was worth litigating.”