Search form

Citing Abuse of Discretion, Mining Commission Vacates Inspector’s Orders

  • March 28, 2016

The Federal Mine Safety and Health Review Commission has vacated orders alleging a Minnesota mine operator failed to abate citations within the time set by an inspector, holding that the inspector abused his discretion by setting arbitrary abatement times. Sec’y of Labor v. Hibbing Taconite Co., Nos. LAKE 2013-231-RM, et al., (Mar. 3, 2016). This decision may curtail the recent practice by some inspectors of setting short abatement periods and then extending them based on observations of progress.

Federal mining law requires a mine operator to abate an alleged violation, and to do so within the time set by the mine inspector. If the cited violation has not been “totally abated” within the time originally fixed, or as subsequently extended, by the inspector, and, if the enforcement official determines the time should not be further extended, the inspector must issue a failure to abate order. This order requires withdrawal of all but essential personnel from the area affected by the alleged violation until the condition is fully corrected.

Legal precedent provides that the inspector is to consider three factors in setting a reasonable abatement time: the extent of the violating conditions, the availability of miners to undertake the corrective work, and competing safety concerns. The operator may challenge the reasonableness of the time set for abatement or the inspector’s failure to extend that time. Hibbing Taconite Co. cited both of these factors in protesting four failure-to-abate orders it received in December 2012. An inspector for the Mine Safety and Health Administration alleged Hibbing had failed to meet his deadlines for abating three housekeeping infractions as well as a citation for allegedly maintaining a metal housing improperly on an exhaust fan. A judge upheld the four orders.

In its unanimous ruling on Hibbing’s appeal, the Commission reversed the judge and vacated the four orders, holding that “[t]he inspector’s issuance of the failure to abate orders was based on a misunderstanding of the law, and amounted to an abuse of discretion.”

The commissioners called attention to the inspector’s testimony in which he stated that, to ensure the operator initiated abatement quickly, he universally sets abatement times of 8:00 a.m. the morning after he verbally issues citations. However, in field notes in which he referenced a discussion with a mine official about his abatement time “policy,” he admitted that some violative conditions could not be corrected by that deadline.

The Commission described one example to support its finding. The inspector cited Hibbing for a housekeeping violation at approximately 5:30 p.m., then set the cleanup deadline for 8:00 a.m. the next morning. When that time passed without resolution, he issued an extension until 8:00 a.m. the next morning, then again to the same time on the third day. But, due to the immensity of the project, abatement did not end until six days after the citation was written.

“We conclude that the inspector did not fix the abatement times based upon ‘the time reasonably required for abatement of the specified conditions,’ as he is required to do by the Mine Act and Commission precedent,” the panel stated.

The law is clear that inspectors must set a “reasonable time” for abatement of the violations they cite. The Commission’s ruling means that an inspector may not use the abatement requirement for the purpose of encouraging prompt abatement when the time is otherwise unreasonable.
Jackson Lewis attorneys are available to answer inquiries regarding this and other workplace developments.

©2016 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at

See AllRelated Articles You May Like

September 26, 2019

An Aging Construction Workforce: Recognition and Response

September 26, 2019

The number of workers aged 55 and over is increasing, while the number of workers under the age of 25 is decreasing, according to the 2018 Current Population Survey. The construction industry may feel this more acutely than other industries, as workers in the construction industry tend to be older than those in other industries, the... Read More

August 21, 2019

Federal Motor Carrier Safety Agency Proposes Changes to Hours of Service Rules for Truck Drivers

August 21, 2019

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has published a notice of proposed rulemaking (NPRM) on changes to the hours of service (HOS) rules. Background First adopted in 1937, FMCSA’s HOS rules set the permitted operating hours of commercial drivers. FMCSA mandated use of... Read More

June 25, 2019

The Aging Construction Industry: Keeping Skilled Employees Longer

June 25, 2019

Workers in the construction industry tend to be older than those in other industries, according to the National Association of Home Builders. The median age of construction workers is 42 years old, a year older than the median in the national labor force. Further, the median age of workers in the industry is 44-45 years old in several U.... Read More

Related Practices