When MSHA issues ‘duplicative’ citations

It can sometimes feel like Mine Safety & Health Administration (MSHA) inspectors are “piling it on,” issuing multiple citations for essentially the same issue.

Sometimes this can take the form of citing the same standard over and over, rather than combining related violations into one citation. An example would be housekeeping violations where material piles located in the same general area result in multiple citations.

Other times, the concern can be with citations issued under different standards, but all related to the same occurrence – such as citing safe access and fall protection for the same event, where a miner chose an unsafe route to reach an elevated location.

Receiving duplicative citations can have negative effects beyond the citations at issue. They inflate civil penalties for future violations, including increasing the possibility of repeat penalty points. They can also lead to high negligence or even unwarrantable failure findings on future citations.

For these and other reasons, mine operators want their MSHA violation history to be accurate and fair. When it seems like inspectors overreach, the mine operator should take a careful look at the facts and the law to see if there may be an opportunity for one or more citations to be vacated.

Duplicative citation types

The law addresses the two separate types of duplicative citations in different ways. MSHA’s Program Policy Manual (PPM) provides guidance for inspectors in writing citations. Regarding multiple citations issued under the same standard, the PPM states this:

“Separate citations shall be issued for … identical violations on separate pieces of equipment; and, identical violations in distinct areas of a mine. For example, if two haul trucks each have the same violation, there will be two separate violations cited. Likewise, if two distinct areas of a mine have loose rock in the roof or back, there will be two separate violations cited.

“However, where there are multiple violations of the same standard which are observed in the course of an inspection and which are all related to the same piece of equipment or to the same area of the mine, such multiple violations should be treated as one violation, and one citation should be issued. For example, ‘Loose roof or ground was observed in four places along the haulage-way between 3 switch and No. 4 x-cut’ or, ‘At the crusher power control panel, insulated bushings were not provided where insulated wires entered five of the metal switch boxes.'”

Put simply, where multiple violations of the same standard are all related to the same piece of equipment or to the same area of the mine, the multiple violations should be treated as one violation and only one citation should be issued. The key facts to focus on in getting this type of duplicative citation vacated all concern the location of the violations.

Are they all on the same piece of equipment or are they all in the same part of the mine? If so, then the inspector should group all of the related citations into one and vacate the others.

When it comes to citations alleging violations of different standards, the courts have established that such citations are not duplicative if the cited standards impose separate and distinct duties.

The mere fact that the citations all relate to the same event or condition is not enough to make them duplicative. The key is what do the cited standards require? If they impose different requirements, then the citations will not be considered duplicative.

Often, this can be evaluated in terms of what was required to terminate the citations. If the same thing would satisfy the abatement requirement for each citation, then the citations are duplicative. You also can think of this in terms of what would be required for compliance with the cited standards. If the same thing would provide for compliance with both standards, under the circumstances at issue in the citations, then the citations are duplicative and only one citation should be issued for this condition.

Piling it on

We often are asked about workplace examination citations and task training orders – which can seem like another form of an inspector finding other ways to issue more than one citation for an occurrence. Technically speaking, workplace examination citations or task training orders are not usually candidates for arguing duplication of violations as those standards impose compliance obligations different than those for the other standards cited in an inspection or investigation.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

 

*Featured Photo: Joe McCarthy