March 30, 2009
MSHA RELEASES OFFICIAL POLICY ON SCHEDULING SAFETY AND HEALTH CONFERENCES
Volume 5, Number 6, March 30, 2009 ©2009 Jackson Kelly PLLC
After a lengthy period of confusion regarding the way MSHA was handling safety and health conferences, the mining industry can finally rely on some official policy guidance. On March 27, 2009, MSHA issued Procedure Instruction Letter (“PIL”) No. I09-III-03 and Program Information Bulletin (“PIB”) No. P09-05 announcing changes in safety and health conferences held pursuant to 30 C.F.R. § 100.6. This March 2009 PIL supersedes PIL No. I08-III-01 released in February 2008. (See Update on MSHA’s Ever-Evolving Safety and Health Conference Process).
Pursuant to this new policy guidance, MSHA has clarified that it will begin holding “settlement conferences” (safety and health conferences) between mine operators and MSHA personnel (Conference and Litigation Representatives or “CLRs”) under 30 C.F.R. § 100.6 after civil penalties have been proposed and timely contested. MSHA is still requiring that requests for safety and health conferences be in writing and include a brief statement of the reason why each citation or order should be conferenced. Failure to provide the brief written statement is a basis for denying a conference request. A request for a safety and health conference will continue to be granted at the discretion of the District Manager or his designee. If granted, the conference will be scheduled in most cases after the civil penalties have been proposed and MSHA has received a timely notice of contest. The failure to timely contest the proposed penalties generally will result in the conference being cancelled.
Once a conference request is granted, the CLR assigned to the matter will notify the operator and miners’ representative of the time and location to discuss all contested violations and associated penalties. The CLR will file a letter with the Federal Mine Safety and Health Review Commission (“Review Commission”) requesting a 90-day extension of time from the original due date for filing a petition for the assessment of civil penalty in the case. In a conference, the CLR “shall make all reasonable attempts to settle the subject violations and/or associated civil penalties in accordance with Part 100 criteria and MSHA guidelines.” If a settlement is reached as a result of this conference, the CLR will file a Petition for Assessment of Civil Penalty and a Motion for Decision and Order Approving Settlement with the Review Commission.
According to MSHA, in some cases, the conference may be held before the notice of proposed penalties is issued. MSHA CLRs, in consultation with the appropriate Regional Solicitors or Solicitors with the Mine Safety and Health Division, may choose to conduct pre-penalty safety and health conferences involving potential Pattern of Violation (“POV”) orders, S&S citations issued during a POV assessment period, statutory violations, flagrant violations, and accident-related violations. It is important to note that participation in a conference does not waive any rights to a hearing before the Review Commission.
It remains unclear which types of matters will continue to be handled by the CLR and which will be forwarded to the Office of the Solicitor, in the event that settlement is not reached.
OCCUPATIONAL SAFETY AND
HEALTH PRACTICE GROUP
HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Karen L. Johnston
(303) 390-0008
For more information, contact:
Laura E. Beverage Karen L. Johnston | R. Henry Moore | Julia K. Shreve Michael T. Cimino |
(303) 390-0003 | (412) 434-8801 | (304) 340-1000 |
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First, we need to define terms. There are two terms that are often confused in the industry: conference and contest. There is a big difference between requesting a conference and filing a contest -- or more properly -- a notice of contest. Here are the procedures available for challenging or otherwise seeking relief from any aspect of a citation or order issued during an MSHA inspection.
• A company can ask an inspector to not issue a citation in light of additional information a company may be able to provide.
• A company can ask an inspector to reconsider a citation or any finding within a citation at anytime during the inspection, up to and including the close-out conference the inspector holds at the end of the inspection.
• A company may request a post-inspection conference with the MSHA district manager or designee pursuant to regulations at 30 CFR 100.6 (procedures for review of citations and orders; procedures for assessment of civil penalties and conferences).
It is important to remember when proceeding informally that:
• The inspector retains discretion during an inspection. By law, citations may be issued based on an inspector’s belief that a violation exists.
• A post-inspection conference is also purely a matter of discretion. In the words of the regulation: “It is within the sole discretion of MSHA to grant a request for a conference and to determine the nature of the conference.”
• In neither case is there any legal review of the procedure or the decision-making process.
If the deadline is missed, the company will not be completely out of court. The company will have an opportunity to litigate formally after MSHA issues a notice of proposed civil penalty, but often that will be far too late to resolve critical issues such as whether the company has been given sufficient time to abate the cited condition or whether the company should have been required to abate at all.
New Civil Penalty Provisions Effective April 23, 2007
This is an overview of changes to 30 CFR Part 100, Criteria and Procedures for Proposed Assessment of Civil Penalties that became effective on April 23, 2007. The significant changes made to this rule are explained below.
The rule implements procedures regarding the civil penalty provisions of the Mine Improvement and New Emergency Response Act of 2006, also known as the MINER Act, signed by President George W. Bush on June 15, 2006. The MINER Act contains three provisions related to civil penalties:
- Immediate Notification - establishes a penalty of at least $5,000 and up to $60,000 where an operator fails to notify MSHA within 15 minutes of an accident where a death, or injury or entrapment which has a reasonable potential to cause death, has occurred.
- Unwarrantable Failure - Sets a minimum penalty of $2,000 for any citation or order issued as an unwarrantable failure under section 104(d)(1) of the Mine Act and a minimum penalty of $4,000 for any order issued under section 104(d)(2).
- Flagrant Violations - Establishes a maximum civil penalty of $220,000 for "flagrant violations".
- Increased penalties: Increases civil penalties overall, targeting the more severe health and safety violations.
- Repeat violations: Adds a new provision to increase penalties for operators who repeatedly violate the same MSHA standards.
- Single penalty: No longer applies. Non-significant and substantial (non-S&S) violations formerly processed as $60 single penalty will now be processed as regular formula assessments.
- Special assessments: Removes the list of specific categories for special assessment. The new rule retains MSHA's authority to specially assess penalties for violations, as appropriate.
- Health and safety conferences: Provides 10 days for safety and health conference requests (no change from the previous rule) but now requires that requests be in writing and contain a brief statement why each citation or order should be conferenced.
100.3 Determination of penalty amount; regular assessment.
(a) General.
Includes language recognizing the new category of violations, flagrant violations, assessed under 100.5(e) may be assessed up to $220,000.
(b) The appropriateness of the penalty to the size of the business of the operator charged.
Maximum penalty points for size of mine and controller have been increased from a maximum of 15 points to a maximum of 25 points.
(c) History of previous violations.
This section has been expanded to include two components: total number of violations and the number of repeat violations of the same standard. The time period for determining history has been changed from 24 months to 15 months.
(c)(1) Total number of violations.
The maximum penalty points for this criterion have been increased from 20 points to 25 points. Operators who have received a minimum of 10 violations during the 15-month period will continue to be assigned penalty points based on the total number of Violations Per Inspection Day (VPID). For independent contractors, penalty points will continue to be assigned on the basis of the total number of violations at all mines at which the contractors have worked during the 15-month period.
(c)(2) Repeat violations of the same standard.
This is a new provision of the total violation history for an operator or independent contractor. This new aspect of the history criterion accounts for a maximum of 20 penalty points. An operator who has received at least six repeat violations of the same citable provision of a standard in the 15-month period preceding the occurrence of the violation will receive repeat violation penalty points penalty. These points will be assigned based on the number of repeat violations per inspection day (RPID).
For independent contractors, penalty points will be assigned on the basis of the number of violations of the same citable provision of a standard in a preceding 15-month period at all mines at which the contractor has worked.
VIOLATIONS PER INSPECTION DAY (VPID)- For operators, assessment history is based on the number of assessed Violations Per Inspection Day (VPID) during the 15 months preceding the date the violation occurred. If the operator's ownership of the mine is less than 15 months, the history period is adjusted to include only that portion of the 15 months that the operator is at the mine.
The 15-month period used to calculate history is 15 months prior to the date the violation occurred. The only exception is if the day of the month 15 months prior does not exist (i.e. the day is the 29th, 30th, or 31st). In that case, the last day of that month is used. For operators, VPID is calculated by adding the violation count, calculating the inspection day count (see below), and then dividing the violation total by the inspection day total. Only violations that have become Final Orders of the Federal Mine Safety and Health Review Commission are included in the operator's history of previous violations.
Inspection days are derived by totaling the MSHA on-site inspection hours entered by Authorized Representatives of the Secretary (AR) for certain inspection activities and task codes and dividing by five (see table below for types of activities that are included). A remainder amount greater than zero increases the count by one. All of the inspectors' time at the mine site is included when calculating inspection days. Travel time to and from the mines is not included.
CONTRACTOR VIOLATION HISTORY - For independent contractors, the Contractor Violations in History Period (CVHP) is derived using the same 15-month period as for operators but includes violations issued to the contractor at all mines at which the contractor has worked during the 15-month period. Both VPID and CVHP are converted to penalty points using the respective tables in 30 CFR 100.3. {insert link to penalty tables}
REPEAT VIOLATIONS PER INSPECTION DAY - For operators, Repeat Violations Per Inspection Day (RPID) is calculated by dividing the number of repeat violations of the same citable provision of a standard by the number of inspection days in the 15-month period described above. If a Section of the Mine Act is cited in lieu of a 30 CFR cite, then VPID violations citing that Section of the Mine Act are counted. If the number of violations used in the VPID calculation is less than 10 or there are fewer than 6 repeat violations of the same standard no RPID points are assigned.
The following list shows the types of MSHA inspection activities that are counted in the operators' inspection day counts. MSHA Supervisor and Inspector Trainee hours are not counted.
- E01 Regular Safety and Health Inspection E02 103(j) Spot Inspection E03 103(g) Written Notification Hazard Complaint Inspection E04 Verbal Hazard Complaint Inspection E06 Fatal Accident Investigation E07 Non-Fatal Accident Investigation E08 Non-Injury Accident Investigation E15 Compliance Follow-up Inspection E16 Spot Inspection E17 Special Emphasis Programs E18 Shaft, Slope or Major Construction Spot Inspection E19 Electrical Technical Investigation E20 Roof Control Technical Investigation E21 Ventilation Technical Investigation E22 Health Technical Investigation E23 Impoundment Spot Inspection E24 Other Technical Compliance Investigations E25 Part 50 Audit E27 Attempted Inspection (Denial of Entry) E28 Mine Idle Activity E33 Non-Chargeable Accident Investigation
Penalty points for the three highest categories of negligence have been increased, reflecting MSHA's intent to target operators who exhibit an increasing lack of commitment to and disregard for miner safety and health. Moderate Negligence penalty points have been increased from 15 to 20 points; High Negligence penalty points have been increased from 20 to 35 points; and Reckless Disregard penalty points have been increased from 25 to 50 points.
(e) Gravity.
The possible penalty points for Gravity have been increased from a combined maximum of 30 to a maximum of 88 points. Increased points for gravity are directed at operators whose mines experience the more serious mine safety and health hazards.
Gravity - Likelihood.
Penalty points for all but one category of Likelihood of Occurrence have been increased:
- No Likelihood remains at zero points;
- Unlikely has been increased from 2 points to 10 points;
- Reasonably Likely has been increased from 5 points to 30 points;
- Highly Likely has been increased from 7 points to 40 points; and
- Occurred has been increased from 10 points to 50 points.
Penalty points for all but one category of Severity of Injury or Illness if the Event Occurred or Were to Occur have been increased:
- No Lost Work Days remains at zero points;
- Lost Work Days or Restricted Duty has been increased from 3 points to 5 points;
- Permanently Disabling has been increased from 7 points to 10 points; and
- Fatal has been increased from 10 points to 20 points
The gravity points for the number of persons potentially affected increase gradually as the number of persons actually affected increases. The maximum penalty points have been increased from 10 points to 18 points for this criterion.
(f) Demonstrated good faith of the operator in abating the violation.
This criterion allows for a reduction in the penalty amount if the operator has abated the violation within the time set by the inspector. The allowable penalty reduction has been decreased from 30% to 10%. The provision in the existing rule which adds 10 points where an operator does not abate the violation within the specified time period has been eliminated.
(g) Penalty Conversion Table
The penalty conversion table that is used to convert total penalty points to dollar amounts has been changed. The points distribution of the table has also been changed. The new range of penalty points is from 60 or fewer to 140 or more. The minimum regular assessment has been increased from $72 to $112. However, considering the good faith reduction allowed in paragraph (f) above, an operator may now receive regular assessments as low as $100 for total points of 60 or less. The penalty points associated with the maximum regular assessment of $60,000 have been increased from 100 to 140 or more penalty points.
(h) The effect of the penalty on the operator's ability to continue in business.
This provision has not been changed.
Old 100.4 Determination of penalty; single penalty assessment.
The $60 single penalty assessment has been eliminated.
New 100.4 Unwarrantable failure.
Section 100.4 implements Section 8(a)(1)(B) of the MINER Act related to minimum unwarrantable failure penalties. The minimum civil penalty for a 104(d)(1) citation or order is $2,000 and the minimum penalty for a 104(d)(2) order is $4,000.
100.5 Determination of penalty: Special assessment.
(a) This provision has been re-written to more clearly state MSHA's authority to issue special assessments when warranted. A list of examples of the types of violations that may be reviewed for special assessments has been eliminated.
(b) This provision has not been changed.
(c) This provision has not been changed.
(d) This provision has not been changed.
(e) This section implements the provision of the MINER Act mandating penalties for flagrant violations. Under the MINER Act, violations that are deemed to be flagrant may be assessed a civil penalty of not more than $220,000. The new rule, which adopted the definition in the MINER Act, defines a "flagrant" violation as "a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury."
(f) This section implements the provisions of the MINER Act mandating prompt incident notification. Under the MINER Act, an operator who fails to provide timely notification to the Secretary, in the event of a death, or an injury or entrapment with reasonable potential to cause death, under section 103(j) (relating to the 15-minute requirement) shall be assessed a civil penalty of not less than $5,000 and not more than $60,000.
100.6 Procedures for review of citations and orders; procedures for assessment of civil penalties and conferences. This provision has been changed to require that all requests for a safety and health conference be in writing and to include a brief statement as to why each citation/order should be conferenced. This provision will help parties requesting a conference to focus on the issues that will be discussed. A concise statement about the reasons each citation/order should be conferenced will give the District Manager necessary information before the conference and will help the parties have a more meaningful and effective conference. MSHA does not intend to use this provision to limit discussion at the safety and health conference to the specific points raised in the written statement, but merely to focus the parties on the issues at hand.
100.7 Notice of proposed penalty; notice of contest.
This provision includes editorial changes for clarity, but remains substantively unchanged from the existing provision.
(a) is amended to include the equivalent of certified mail as a means of service of the notice of proposed penalty. Although MSHA may continue to use certified mail, the Agency may also use alternative methods of certified delivery that are the equivalent of certified mail, e.g. certified delivery by a commercial package carrier.
(b) Language in previous Section 100.7(b) that addressed MSHA's internal operating procedures has been deleted to allow more efficient methods that use improved technologies. MSHA currently provides a form that lists violations being assessed, instructions for paying or contesting assessments, and MSHA contact information to facilitate an operator's request for a hearing with each proposed assessment. MSHA intends to continue this practice and will continue to immediately advise the Commission and the Office of the Solicitor of a contest.
100.8 Service.
This provision has not been changed.
About MSHA's Rule for Alcohol and Drug-Free Mines (Speech by Ann Kelhart):
TESTIMONY OF THE NATIONAL STONE,
SAND & GRAVEL ASSOCIATIONCONCERNING MSHA’S PROPOSED RULEFOR ALCOHOL- AND DRUG-FREE MINES
SAND & GRAVEL ASSOCIATIONCONCERNING MSHA’S PROPOSED RULEFOR ALCOHOL- AND DRUG-FREE MINES
October 14, 2008
Arlington, VA Public Hearing
"On behalf of the National Stone, Sand & Gravel Association, I am pleased to present the following testimony concerning the Mine Safety & Health Administration proposed rule to establish policies, prohibitions, testing, and training requirements to establish alcohol- and drug-free mines in the United States, as published in the September 8, 2008, Federal Register.
My name is Anne Kelhart and I manage safety and health for the Martin Stone Company in Bechtelsville, Pennsylvania, and also serve as Chair of NSSGA’s safety and health committee.
NSSGA is the world’s largest mining association by product volume. Its member companies represent approximately 118,000 working men and women; more than 90 percent of the crushed stone and 70 percent of the sand and gravel produced annually in the U.S. More than three billion tons of aggregates were produced in 2007 at a value of approximately $21.5 billion, contributing nearly $40 billion to the GDP of the United States. Every $1 million in aggregate sales creates 19.5 jobs, and every dollar of industry output returns $1.58 to the economy. Our members operate in every state in the nation. Of the 23,054 mines in this country, nearly half of
them are in the aggregates industry, so NSSGA’s membership will be heavily impacted by this proposal. A vast majority of these aggregate mines are classified as small businesses, both by the U.S. Small Business Administration’s definition and by MSHA’s own criteria. NSSGA applauds MSHA for tackling this issue in a proactive manner, and notes that its predecessor organization, the National Stone Association, served on a tripartite working group with MSHA, unions and state government representatives in the early 1990s to advance substance abuse prevention in mining.
We are pleased to see that MSHA has once again resumed work in this critical area.
This testimony will focus on some of the main concerns that NSSGA has about the proposal, and we will submit more detailed written comments covering these issues, and additional matters pertaining to the rule, before the October 29 deadline.
Although many of the provisions of this proposed rule are acceptable, others need major work because of infeasibility, or because they run contrary to established employment law practices.
While many of our larger corporate members already have substance abuse prevention programs in place and may utilize drug and/or alcohol testing under certain circumstances, many of the smaller companies do not yet have such a framework in place.
Therefore, we believe that MSHA has considerably underestimated the cost of the proposed rule, particularly its cost impact on smaller mines. We urge MSHA to reconfigure its regulatory impact analysis once more. Cost data on this proposal can be obtained through the notice-andcomment process.
Scope of Rule
NSSGA agrees that any proposal should apply in equal measure to coal and metal/nonmetal mines, both surface and underground. There is no basis for affording lesser protection to some miners than to others. Under the substance abuse testing/training requirements, MSHA would cover all miners who receive comprehensive training and who perform safety-sensitive job duties. Comprehensive training is defined as 24 hours training for surface mines and 40 hours for underground mines. However, the definition in 30 CFR 66.3 covers (quote) “any type of work activity where a momentary lapse of critical concentration could result in an accident, injury, or death.” For all practical purposes, this covers virtually everyone at the mine site.
Mines are a dynamic work environment where even crossing the road to go to the parking lot could result in death due to a momentary lapse of concentration in the midst of heavy equipment. If MSHA intends to cover everyone at the mine who receives comprehensive Part 46 or 48 training, they should simply state that. Introducing subjective criteria that allows for arbitrary and capricious after the fact interpretation forces an operator to guess at an interpretation.
Independent Contractors
In general, we have concerns about how this rule will be enforced as it pertains to independent contractors; particularly those persons performing work at mines and whose employees become “miners” by definition - subject to comprehensive Part 46 or 48 training – but who do not normally work within MSHA jurisdictions. Those contractors are mine operators under the Mine Act, but too often of late, MSHA has issued duplicate citations to the production operator for contractor violations, invoking their unreviewable discretion under the 2006 Twentymile Coal decision of the U.S. Court of Appeals, D.C. Circuit. It will be quite problematic for a production operator to verify compliance with certain provisions of this rule, such as the drug testing of contractor employees, for short-term contractors whose coverage is triggered by being at the mine site more than five consecutive days. Privacy issues are just one of the obstacles faced by mine operators checking contractor compliance, although review of substance abuse programs and training records may be possible.
A larger concern is that mining companies in rural areas do not have a large number of specialty contractors to choose from and if a contractor who is normally under OSHA jurisdiction will have to put an entire substance abuse program and
testing framework into place just to perform a couple of weeks’ work at a mine, it is likely to simply decline the work. This will not only create problems for mine operators in getting quality contract work done by such specialty sectors as crane companies, electricians, drillers and blasters but could possibly place miners at increased risk. MSHA needs to reconsider the scope of this rule, as it pertains to contractors, and perhaps come up with a different definition of “miner” that will exclude these short-term contract workers – whose work may undoubtedly
involve safety-sensitive areas – or else affirm in the final rule that the “host” mine operator will not be cited for infractions by independent contractors who work at their mine sites.
Employment Law Issues
As noted, many of NSSGA’s member companies have programs in place, and many of these are modeled on the U.S. Department of Transportation requirements for commercial drivers, since often such “CDL” employees are also miners. Quite a few of these programs, however, include a zero tolerance or one-strike-and-you’re-out provision for those who have positive drug or alcohol tests. Although reinstatement is often made available to those who self-report a problem and go through appropriate treatment and counseling, this is not the case for those caught as
the result of a random or post-accident test. The majority of states in this country have basic “employment at will” principles wherein all employees can be terminated at any time, with or without cause. The exceptions are those workers subject to an employment contract for a period of time, subject to a collective bargaining agreement or subject to other company-specific disciplinary procedures that preclude termination for certain offenses. Many companies also have seniority systems that dictate, in the event of layoffs, the order in which workers will be released.
Under MSHA’s proposed rule, a worker who has a positive drug test gets preferential status when compared to workers who have not broken drug or alcohol rules insofar as the company would be required to preserve the miner’s job while he/she obtains treatment and to reinstate the miner afterwards. The proposal is silent on what would happen if layoffs occur in the interim, which might have otherwise resulted in the layoff of the miner. But the rule does at least acknowledge that if the miner could be terminated for a different infraction, the company could legally take such action.
More significantly, however, we believe that the mandatory reinstatement provision actually will weaken existing programs and encourage drug and alcohol use by making mines a “safe harbor” for users – at least after the first positive test and completion of treatment. MSHA is, we believe, without authority to alter fundamental concepts of employment law that are well-established through case law in every state and at the federal level. If companies wish to retain a “one-strike” provision in their programs, they should be free to do so. Therefore, the provision
in 66.400(b) must be stricken from this rule.
Drug Testing
MSHA should also permit existing programs that adhere to DOT “five-panel” criteria to continue, unaltered, including the decision to test for the same drugs as DOT requires under such programs, plus alcohol. This is also consistent with state mining laws in Kentucky and Virginia. If mine operators wish to add the other drugs listed by MSHA, they should be allowed to do so, after acceptable floor levels of synthetic opiates have been determined. But under no circumstances should mine operators be required to deviate from DOT testing criteria. The Secretary should not be permitted to add extra substances to the testing mandates in the future, unless she does so through formal notice-and-comment rulemaking.
This rule anticipates a high volume of drug tests that will be at the mine operator’s expense, including various pre-hire, random, post-accident, return to duty, and suspicion criteria, plus the requirement to test any “positive” workers six times in the following 12 months. While we agree that the operator should pay for most testing, we believe that a “positive” tested worker should have to bear the expense for his/her monitoring if the miner returns to work following treatment. Moreover, we question whether there are sufficient testing companies and Medical Review Officers available in many rural areas to handle the volume of tests in a timely manner. Most aggregate operators may not have a current relationship with a MRO. The rule is also
quite burdensome in requiring an MRO to contact all doctors that may prescribe medications to each miner at the worksite who is subject to drug and alcohol testing. The feasibility of this must be re-examined when finalizing this rule.
NSSGA is also concerned that the “post accident” criteria is too broad, as it would mandate a test for any reportable injury, regardless of severity, as long as it triggered “medical treatment” under Part 50. We suggest that this testing trigger be limited to those incidents that are “immediately reportable” under 50.10 and which are defined as “accidents” in 50.2(h). Companies should be free, of course, to implement more stringent post-incident testing if they already do so under their existing programs and consistent with DOT criteria.
We also disagree that MSHA should be authorized, if it initiates an accident investigation in a timely manner, to order drug testing of any persons it believes contributed to the accident. This is overly broad and interferes with the employer/employee relationship. As a practical matter, neither MSHA nor the operator will be able to complete any type of adequate “root cause”
investigation in the short window of time when drug/alcohol testing can be performed. In light of this, MSHA should defer to the employer’s judgment on who must be tested in these situations.
NSSGA also has concerns about worker privacy issues, particularly since the rule envisions MSHA inspectors having access to information about positive tests. We understand that MSHA is exempt from the Health Insurance Portability and Accountability Act, also known as HIPAA requirements. However, there should still be some assurance that inspectors will not reveal one miner’s personal information to others or through public release in a freedom of information act request. There should be sanctions available against inspectors who violate miner privacy
interests.
Training
MSHA suggests that supervisors must receive twice the training – both initially and on an annual basis – than other miners receive relevant to substance abuse prevention, and indicates that such training must be in addition to the normal training required under Parts 46 and 48. Effectively, this increases annual refresher training from 8 hours to 8.5 hours for miners and to 9 hours for supervisors. There is no basis for expanding the new miner training or annual refresher training duration requirements. Many companies already cover substance abuse as part of their initial and refresher training and because MSHA acknowledges that this is a significant safety issue, it is appropriate to include this within the existing training framework.
This should be clarified in the rule, and the same duration of training should be provided for both miners and supervisors so that separate training programs will not be required relative to substance abuse, and changes in the training plans will not be required. NSSGA agrees that any person training on substance abuse prevention should be competent to do so.
Conclusion
In conclusion, NSSGA supports a drug/alcohol free workplace in the mining industry and many of its members have been proactive in this area. We urge the agency to modify the proposed rule in a way that existing programs can continue to be used successfully, that any rule is consistent with DOT and state law requirements concerning both substance abuse prevention and basic concepts of employment-at-will, and that the privacy rights of all involved are adequately protected. Historically, NSSGA has worked with MSHA on a number of initiatives, including the initial work on this topic in 1990 and again in 2000 during the promulgation process for Part 46. We look forward to working with MSHA again to achieve the goal of a drug/alcohol free workplace. Thank you for considering our comments today and we will be pleased to answer any questions you might have. "
Conclusion
In conclusion, NSSGA supports a drug/alcohol free workplace in the mining industry and many of its members have been proactive in this area. We urge the agency to modify the proposed rule in a way that existing programs can continue to be used successfully, that any rule is consistent with DOT and state law requirements concerning both substance abuse prevention and basic concepts of employment-at-will, and that the privacy rights of all involved are adequately protected. Historically, NSSGA has worked with MSHA on a number of initiatives, including the initial work on this topic in 1990 and again in 2000 during the promulgation process for Part 46. We look forward to working with MSHA again to achieve the goal of a drug/alcohol free workplace. Thank you for considering our comments today and we will be pleased to answer any questions you might have. "
I. CONGRESSIONAL ACTION
The Mine Safety and Health Administration’s (MSHA’s) coal inspection program would receive $155 million in fiscal year 2009 in a budget approved by the Senate Appropriations Committee. The amount is $10 million over the President’s request, and reflects a personal effort by Sen. Robert Byrd to keeping money flowing to the agency’s coal enforcement arm. The budget proposal now goes to the full Senate.
Byrd also engineered another $4.4 million for coal enforcement this year. That money replaces funds that had been transferred from Coal to Metal/Non-Metal (M/NM) and to the Solicitor’s Office to defend agency citations from industry appeals. MSHA has committed to completing 100% of its inspections in M/NM this year for the first time ever, and the money has been earmarked for that purpose.
Byrd also engineered another $4.4 million for coal enforcement this year. That money replaces funds that had been transferred from Coal to Metal/Non-Metal (M/NM) and to the Solicitor’s Office to defend agency citations from industry appeals. MSHA has committed to completing 100% of its inspections in M/NM this year for the first time ever, and the money has been earmarked for that purpose.
The House Education and Labor Committee has taken the Occupational Safety and Health Administration (OSHA) to task for allegedly permitting some employers to underreport their injury and illness experience, due to lax enforcement of the agency’s recordkeeping requirements.
The OSHA 300 log is the form OSHA requires employers to maintain to record workplace injuries and illnesses. The log, in turn, is used by the Bureau of Labor Statistics (BLS) as a primary data source for its annual nationwide survey of occupational injuries and illnesses. At a hearing last month, several witnesses testified that the BLS survey could underreport injuries and illnesses by as much as 69%.
OSHA whistleblower Bob Whitmore claimed OSHA has an incentive to provide a favorable injury report because doing so makes it appear to be more effective in accomplishing its mission than it really is.
Whitmore described three cycles through which OSHA has evolved the enforcement of its recordkeeping rules. In the first, recordkeeping violations topped the list of the most oft-cited OSHA rules, but fines were usually light. However, beginning in 1986, a new instance-by-instance violation policy called the egregious penalty began to be enforced. Fines for inaccurate recordkeeping jumped dramatically. As a result, “the national injury and illness rates rose this period,” Whitmore claimed.
However, after Congress passed a law holding agencies such as OSHA directly accountable for the rise and fall in injury and illnesses statistics, OSHA backed off on enforcement. “OSHA ceased virtually any meaningful recordkeeping enforcement actions after 1991,” testified Whitmore, who has been placed on administrative leave from his long-time job as director of OSHA’s injury and illness recordkeeping system.
Among his five suggestions for improving reporting was Whitmore’s recommendation that corporate safety officers be required to certify the accuracy of their injury reports in a manner similar to existing requirements under the Sarbanes-Oxley statute for certifying the accuracy of financial statements.
Besides lax enforcement, witnesses listed a number of alleged incentives employers have for undercounting, including reducing the possibility of being targeted for OSHA inspections, lowering workers compensation premiums, earning bonuses, and improving chances for being awarded government contracts. A witness for the U.S. Chamber of Commerce disputed some of those claims.
The June 19 date of the hearing was timed to coincide with the release of a Committee report on underreporting that identified “OSHA’s reliance on self-reporting by employers” as a major cause of the problem. The report also faulted the agency for failing to do anything meaningful about underreporting.
At the request of the Committee, the Government Accountability Office is conducting a study on underreporting. Its report, due around the end of the year, is likely to fuel legislation in Congress next year. Contact Henry Chajet (hchajet@pattonboggs.com, 202.457.6511) or John Austin (jaustin@pattonboggs.com, 202.457.6167) for more information.
The OSHA 300 log is the form OSHA requires employers to maintain to record workplace injuries and illnesses. The log, in turn, is used by the Bureau of Labor Statistics (BLS) as a primary data source for its annual nationwide survey of occupational injuries and illnesses. At a hearing last month, several witnesses testified that the BLS survey could underreport injuries and illnesses by as much as 69%.
OSHA whistleblower Bob Whitmore claimed OSHA has an incentive to provide a favorable injury report because doing so makes it appear to be more effective in accomplishing its mission than it really is.
Whitmore described three cycles through which OSHA has evolved the enforcement of its recordkeeping rules. In the first, recordkeeping violations topped the list of the most oft-cited OSHA rules, but fines were usually light. However, beginning in 1986, a new instance-by-instance violation policy called the egregious penalty began to be enforced. Fines for inaccurate recordkeeping jumped dramatically. As a result, “the national injury and illness rates rose this period,” Whitmore claimed.
However, after Congress passed a law holding agencies such as OSHA directly accountable for the rise and fall in injury and illnesses statistics, OSHA backed off on enforcement. “OSHA ceased virtually any meaningful recordkeeping enforcement actions after 1991,” testified Whitmore, who has been placed on administrative leave from his long-time job as director of OSHA’s injury and illness recordkeeping system.
Among his five suggestions for improving reporting was Whitmore’s recommendation that corporate safety officers be required to certify the accuracy of their injury reports in a manner similar to existing requirements under the Sarbanes-Oxley statute for certifying the accuracy of financial statements.
Besides lax enforcement, witnesses listed a number of alleged incentives employers have for undercounting, including reducing the possibility of being targeted for OSHA inspections, lowering workers compensation premiums, earning bonuses, and improving chances for being awarded government contracts. A witness for the U.S. Chamber of Commerce disputed some of those claims.
The June 19 date of the hearing was timed to coincide with the release of a Committee report on underreporting that identified “OSHA’s reliance on self-reporting by employers” as a major cause of the problem. The report also faulted the agency for failing to do anything meaningful about underreporting.
At the request of the Committee, the Government Accountability Office is conducting a study on underreporting. Its report, due around the end of the year, is likely to fuel legislation in Congress next year. Contact Henry Chajet (hchajet@pattonboggs.com, 202.457.6511) or John Austin (jaustin@pattonboggs.com, 202.457.6167) for more information.
II. REGULATORY UPDATE
Continuing with the regulatory push spurred by the Sago Mine disaster and the MINER Act, the Mining Safety and Health Administration (MSHA) issued two major proposed rules in June and is on track to release a third rulemaking initiative this month.
Belt Air
The MINER Act directed NIOSH to set up an advisory panel on the use of air in conveyor belt entries to ventilate working faces in underground coal mines. Belt air, as the practice is called, has been controversial ever since passage of the 1969 Coal Act, which essentially banned the practice. However, over the years some operators were granted variances from MSHA to use belt air, provided they installed safeguards, including systems along the belt to monitor the air.
Faced with a growing number of such variance requests, the agency adopted a rule in 2004 allowing belt air, provided that approved atmospheric monitoring systems (AMS) and other safeguards were in place. That rulemaking came under criticism when two miners died in a belt fire in West Virginia in January 2006.
The MINER Act called on MSHA to decide what to do about belt air within six months of the release of the panel report, which came out last December. However, Congress subsequently changed its mind, and in the 2008 appropriations bill ordered MSHA to initiate rulemaking. In response, MSHA recently issued proposed regulations entitled: “Safety Standards Regarding the Recommendations of the Technical Study Panel on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining; Conveyor Belt Combustion Toxicity and Smoke Density; Proposed Rules.”
With release of the proposal, acting MSHA chief Richard Stickler said its objective “is to improve mine safety by significantly reducing the hazard of conveyor belt fires in underground coal mines." The measure calls for underground coal mine operators to purchase conveyer belts that are more flame-resistant than those under the existing standard, beginning one year after the effective date of the final rule. Existing belts would be permitted until replacement is necessary.
Mine operators would also be required to replace point-type heat sensors with carbon monoxide sensors, install smoke sensors, improve belt maintenance, and standardize lifeline signals to identify direction of travel to the surface, storage caches for self-contained self-rescuers, obstructions to escape, and refuge alternatives.
In addition, the proposal stipulates that the primary intake escapeway must have a higher ventilating pressure than the belt entry, airlocks must be required where high air pressure differentials exist between air courses on personnel doors along escapeways, minimum and maximum air velocities must be established in belt entries, and dust levels must be reduced in entries where belt air is used.
MSHA’s proposal got a cool reception from Democratic lawmakers and the United Mine Workers (UMW). A spokesman for Rep. George Miller (D-CA) said provisions of S-MINER legislation would be preferable because they ban belt air except in the rare instances when it would be necessary for safety reasons. Sen. Ted Kennedy (D-MA) agreed. The S-MINER bill was approved in the House in January and awaits Senate action. S-MINER would also require belt replacement in underground metal/non-metal (M/NM) mines. The UMW said it continues to favor an outright ban.
MSHA is taking comments until Sept. 8, and has scheduled four public hearings as follows: August 19, Salt Lake City; August 21, Lexington, KY; August 26, Charleston, WV; and August 28, Birmingham, AL.
Belt Air
The MINER Act directed NIOSH to set up an advisory panel on the use of air in conveyor belt entries to ventilate working faces in underground coal mines. Belt air, as the practice is called, has been controversial ever since passage of the 1969 Coal Act, which essentially banned the practice. However, over the years some operators were granted variances from MSHA to use belt air, provided they installed safeguards, including systems along the belt to monitor the air.
Faced with a growing number of such variance requests, the agency adopted a rule in 2004 allowing belt air, provided that approved atmospheric monitoring systems (AMS) and other safeguards were in place. That rulemaking came under criticism when two miners died in a belt fire in West Virginia in January 2006.
The MINER Act called on MSHA to decide what to do about belt air within six months of the release of the panel report, which came out last December. However, Congress subsequently changed its mind, and in the 2008 appropriations bill ordered MSHA to initiate rulemaking. In response, MSHA recently issued proposed regulations entitled: “Safety Standards Regarding the Recommendations of the Technical Study Panel on the Utilization of Belt Air and the Composition and Fire Retardant Properties of Belt Materials in Underground Coal Mining; Conveyor Belt Combustion Toxicity and Smoke Density; Proposed Rules.”
With release of the proposal, acting MSHA chief Richard Stickler said its objective “is to improve mine safety by significantly reducing the hazard of conveyor belt fires in underground coal mines." The measure calls for underground coal mine operators to purchase conveyer belts that are more flame-resistant than those under the existing standard, beginning one year after the effective date of the final rule. Existing belts would be permitted until replacement is necessary.
Mine operators would also be required to replace point-type heat sensors with carbon monoxide sensors, install smoke sensors, improve belt maintenance, and standardize lifeline signals to identify direction of travel to the surface, storage caches for self-contained self-rescuers, obstructions to escape, and refuge alternatives.
In addition, the proposal stipulates that the primary intake escapeway must have a higher ventilating pressure than the belt entry, airlocks must be required where high air pressure differentials exist between air courses on personnel doors along escapeways, minimum and maximum air velocities must be established in belt entries, and dust levels must be reduced in entries where belt air is used.
MSHA’s proposal got a cool reception from Democratic lawmakers and the United Mine Workers (UMW). A spokesman for Rep. George Miller (D-CA) said provisions of S-MINER legislation would be preferable because they ban belt air except in the rare instances when it would be necessary for safety reasons. Sen. Ted Kennedy (D-MA) agreed. The S-MINER bill was approved in the House in January and awaits Senate action. S-MINER would also require belt replacement in underground metal/non-metal (M/NM) mines. The UMW said it continues to favor an outright ban.
MSHA is taking comments until Sept. 8, and has scheduled four public hearings as follows: August 19, Salt Lake City; August 21, Lexington, KY; August 26, Charleston, WV; and August 28, Birmingham, AL.
Refuge Alternatives
MSHA’s second major rulemaking addresses refuge alternatives in underground coal mines. MSHA’s statutory mandate was to consider the use of refuge chambers in underground mines. The agency chose not to act on the congressional recommendation due to concerns that refuge chambers might not withstand the force of an explosion or might actually trap miners in a fire. The agency also believed refuge sites might spur miners to seek shelter when escape is the preferred alternative in an emergency.
However, after 12 miners died in an explosion at the Sago mine, new life was breathed into shelters as an alternative in an emergency. Believing escape routes were blocked, all but one of the miners succumbed to toxic gases behind a makeshift barricade they had set up while awaiting rescue. The incident prompted officials in West Virginia to mandate the use of refuge shelters in that state.
As with belt air, the MINER Act directed NIOSH to study the issue, and MSHA to act on NIOSH’s recommendations. Again, Congress changed its mind and ordered MSHA to respond to the NIOSH report with rulemaking. The Institute’s report concluded that refuge alternatives were both feasible and practical in most underground coal mines.
MSHA’s proposal would require a protected, secure space, with an isolated atmosphere that creates a life-sustaining environment for trapped miners in the event that escape in an emergency underground is not possible.
The proposal allows three types of refuge alternatives, and requires training so that miners can locate, transport, activate, use, and maintain refuge alternatives. Refuge alternatives and their components, such as breathable air and harmful gas removal, would need to sustain persons for 96 hours, or 48 hours if advance arrangements are made for additional supplies from the surface of the mine. Food, water, lighting, first-aid supplies, and sanitation provisions would be required, as well as two-way communications.
The S-MINER bill would commission a panel to make recommendations for providing equal protection for underground M/NM miners in emergencies. This likely would translate into a recommendation for refuge chambers in those mines as well.
Hearings are set in the same four cities as the belt air sessions: July 29, Salt Lake City; July 31, Charleston; Aug. 5, Lexington; and Aug. 7, Birmingham. The comment period closes Aug. 18.
Diesel Particulate Matter
MSHA’s final limit for exposure to diesel particulate matter (DPM) in underground M/MN mines went into effect May 20. MSHA said the new limit, 160 micrograms per cubic meter, measured as total carbon, would be immediately enforceable.
On that date, the agency released two documents: a Federal Register notice announcing the new permissible exposure limit (PEL) and a Program Policy Letter. The documents outlined the sampling protocol MSHA intended to use for compliance. Compliance would be based on the result of personal sampling, as before. However, area samples would also be collected in parts of the mine expected to be free of non-diesel sources of carbon that could falsely elevate the personal sample result.
Noticeably absent from either document were specifics on factors to correct for random errors that occur during sampling and analysis. These so-called “error factors” require adjustments to the exposure limit. Thus, if the error factor for 160 is determined to be 10%, MSHA would not cite if the compliance sampling result were 176 or less. As a result, operators were left in the dark on the precise limits MSHA intended to enforce.
The agency also resisted an effort to obtain a copy of a consultant’s report that it relied upon to develop the final sampling protocol, saying release was exempt under a provision of the Freedom of Information Act. The report was said to have been prepared by Jon Kogut, a retired MSHA employee with extensive experience in helping develop its DPM rulemaking.
After more than a month, on June 27 MSHA finally put out a 2-page document, aimed at operators, that gave specifics on its enforcement plan. Results of TC analysis at or above 191 and elemental carbon (EC) results at or above 176 will be citable. In addition, EC results below 176 will be cited if the adjusted TC result, multiplied by its error factor, exceeds a threshold criterion. Adjusted TC is assumed to be free of non-diesel carbon interferences.
With the May 20 Federal Register notice, MSHA’s protracted and contentious DPM rulemaking would appear to have come to an end, unless expected challenges by the MARG coalition and industry associations are successful, or the agency voluntarily reopens the rulemaking. The agency’s final rule, released on the last day of the Clinton Administration in 2001, sparked industry lawsuits. However, the results of a diesel exposure and health effects study of miners, currently being conducted by NIOSH and the National Cancer Institute, is expected to be released this year. If those results show no health effects at the final limit, operators may once again challenge MSHA’s final PEL on that basis.
Substance Abuse
MSHA is expected to issue a proposal rule on substance abuse this month. The proposal has been at the Office of Management and Budget for review since June 3.
MSHA’s second major rulemaking addresses refuge alternatives in underground coal mines. MSHA’s statutory mandate was to consider the use of refuge chambers in underground mines. The agency chose not to act on the congressional recommendation due to concerns that refuge chambers might not withstand the force of an explosion or might actually trap miners in a fire. The agency also believed refuge sites might spur miners to seek shelter when escape is the preferred alternative in an emergency.
However, after 12 miners died in an explosion at the Sago mine, new life was breathed into shelters as an alternative in an emergency. Believing escape routes were blocked, all but one of the miners succumbed to toxic gases behind a makeshift barricade they had set up while awaiting rescue. The incident prompted officials in West Virginia to mandate the use of refuge shelters in that state.
As with belt air, the MINER Act directed NIOSH to study the issue, and MSHA to act on NIOSH’s recommendations. Again, Congress changed its mind and ordered MSHA to respond to the NIOSH report with rulemaking. The Institute’s report concluded that refuge alternatives were both feasible and practical in most underground coal mines.
MSHA’s proposal would require a protected, secure space, with an isolated atmosphere that creates a life-sustaining environment for trapped miners in the event that escape in an emergency underground is not possible.
The proposal allows three types of refuge alternatives, and requires training so that miners can locate, transport, activate, use, and maintain refuge alternatives. Refuge alternatives and their components, such as breathable air and harmful gas removal, would need to sustain persons for 96 hours, or 48 hours if advance arrangements are made for additional supplies from the surface of the mine. Food, water, lighting, first-aid supplies, and sanitation provisions would be required, as well as two-way communications.
The S-MINER bill would commission a panel to make recommendations for providing equal protection for underground M/NM miners in emergencies. This likely would translate into a recommendation for refuge chambers in those mines as well.
Hearings are set in the same four cities as the belt air sessions: July 29, Salt Lake City; July 31, Charleston; Aug. 5, Lexington; and Aug. 7, Birmingham. The comment period closes Aug. 18.
Diesel Particulate Matter
MSHA’s final limit for exposure to diesel particulate matter (DPM) in underground M/MN mines went into effect May 20. MSHA said the new limit, 160 micrograms per cubic meter, measured as total carbon, would be immediately enforceable.
On that date, the agency released two documents: a Federal Register notice announcing the new permissible exposure limit (PEL) and a Program Policy Letter. The documents outlined the sampling protocol MSHA intended to use for compliance. Compliance would be based on the result of personal sampling, as before. However, area samples would also be collected in parts of the mine expected to be free of non-diesel sources of carbon that could falsely elevate the personal sample result.
Noticeably absent from either document were specifics on factors to correct for random errors that occur during sampling and analysis. These so-called “error factors” require adjustments to the exposure limit. Thus, if the error factor for 160 is determined to be 10%, MSHA would not cite if the compliance sampling result were 176 or less. As a result, operators were left in the dark on the precise limits MSHA intended to enforce.
The agency also resisted an effort to obtain a copy of a consultant’s report that it relied upon to develop the final sampling protocol, saying release was exempt under a provision of the Freedom of Information Act. The report was said to have been prepared by Jon Kogut, a retired MSHA employee with extensive experience in helping develop its DPM rulemaking.
After more than a month, on June 27 MSHA finally put out a 2-page document, aimed at operators, that gave specifics on its enforcement plan. Results of TC analysis at or above 191 and elemental carbon (EC) results at or above 176 will be citable. In addition, EC results below 176 will be cited if the adjusted TC result, multiplied by its error factor, exceeds a threshold criterion. Adjusted TC is assumed to be free of non-diesel carbon interferences.
With the May 20 Federal Register notice, MSHA’s protracted and contentious DPM rulemaking would appear to have come to an end, unless expected challenges by the MARG coalition and industry associations are successful, or the agency voluntarily reopens the rulemaking. The agency’s final rule, released on the last day of the Clinton Administration in 2001, sparked industry lawsuits. However, the results of a diesel exposure and health effects study of miners, currently being conducted by NIOSH and the National Cancer Institute, is expected to be released this year. If those results show no health effects at the final limit, operators may once again challenge MSHA’s final PEL on that basis.
Substance Abuse
MSHA is expected to issue a proposal rule on substance abuse this month. The proposal has been at the Office of Management and Budget for review since June 3.
III. ENFORCEMENT
Sixteen mine operators were put on notice last month that they are potential violators of MSHA’s pattern of violation provision under Sec. 104(e) of the Mine Act.
"Repeated safety and health violations by mine operators will not be tolerated," said MSHA chief Richard Stickler in a press release.
Fourteen coal mines and two metal/non-metal operators are on the latest list, the third in a series under an enhanced enforcement initiative. A total of 40 operations have received letters since the program began a year ago.
Stickler contended that the lists, part of what he termed MSHA’s “comprehensive approach to enforcement,” have greatly increased the agency’s effectiveness. In support, he said seven of eight operators on the first list reduced their rate of significant and substantial (S&S) violations by an average of 50% during the following 90-day review period. One mine closed. Operators on the second list, released in December, lower their S&S rates by an average of 65%.
MSHA expects potential pattern violators to reduce their S&S violation frequency rate by at least 30% during the review period, or reduce the rate to below the national average for the sector. If they fail, they will be subject to severe enforcement penalties, including shutdown of areas where alleged serious violations are identified on subsequent inspections.
Because of the draconian consequences that could result from being named a pattern violator, operators who receive potential pattern notices should seek counsel immediately. Patton Boggs’ attorneys have decades of experience in assisting operators under these circumstances. Contact Henry Chajet (hchajet@pattonboggs.com, 202.457.6511) or Mark Savit (msavit@pattonboggs.com, 303.894.6117) for assistance with patterns of violation and how to avoid them.
"Repeated safety and health violations by mine operators will not be tolerated," said MSHA chief Richard Stickler in a press release.
Fourteen coal mines and two metal/non-metal operators are on the latest list, the third in a series under an enhanced enforcement initiative. A total of 40 operations have received letters since the program began a year ago.
Stickler contended that the lists, part of what he termed MSHA’s “comprehensive approach to enforcement,” have greatly increased the agency’s effectiveness. In support, he said seven of eight operators on the first list reduced their rate of significant and substantial (S&S) violations by an average of 50% during the following 90-day review period. One mine closed. Operators on the second list, released in December, lower their S&S rates by an average of 65%.
MSHA expects potential pattern violators to reduce their S&S violation frequency rate by at least 30% during the review period, or reduce the rate to below the national average for the sector. If they fail, they will be subject to severe enforcement penalties, including shutdown of areas where alleged serious violations are identified on subsequent inspections.
Because of the draconian consequences that could result from being named a pattern violator, operators who receive potential pattern notices should seek counsel immediately. Patton Boggs’ attorneys have decades of experience in assisting operators under these circumstances. Contact Henry Chajet (hchajet@pattonboggs.com, 202.457.6511) or Mark Savit (msavit@pattonboggs.com, 303.894.6117) for assistance with patterns of violation and how to avoid them.
In a media teleconference June 16, MSHA boss Richard Stickler said the agency issued a record 140,000 citations and orders last year, and is on track to issue 180,000 this year. He said that these figures included a roughly 60% increase in the number of unwarrantable failure violations for alleged high negligence.
Assessments were over $75 million in 2007 and, with the current bulge in citations and orders, will likely top $100 million this year.
He also complained that some 200 operators were appealing 100% of the violations and orders they have received in recent months.
“So it appears to me that they are deliberately abusing the system and creating a backlog that is making it difficult for MSHA and for everyone involved,” he remarked.
To call attention to those companies, MSHA has posted a list on its website identifying operators, the number of citations and orders written against them and the percentage of the total they are contesting. The list covers the six-month period ending March 31.
Through June, the Federal Mine Safety and Health Review Commission had received 6,628 new cases since Oct. 1. At the same time a year ago, only 2,727 cases had been filed. With just three months left in the fiscal year, the Commission could end up with nearly 9,000 new cases.
Operators who feel that they are the victims of bad paper should not hesitate to exercise their due process right of appeal. Whether a violation exists at all is not the only reason to appeal a citation. MSHA has been calling a much larger percentage of violations significant and substantial and has increasingly asserted that citations are the result of high negligence or result in death. Many of these characterizations are questionable and, if left unchallenged, could result in much higher fines and a more serious history of violations. It is an operator’s right to challenge these elements as well as the violation itself. On the other hand, if an operator receives a settlement offer that would result in the modification of a citation for a clear-cut infraction that results in the citation being been fairly weighted for negligence and gravity, consideration should be given to accepting the settlement and removing the case from the Commission’s caseload.
Assessments were over $75 million in 2007 and, with the current bulge in citations and orders, will likely top $100 million this year.
He also complained that some 200 operators were appealing 100% of the violations and orders they have received in recent months.
“So it appears to me that they are deliberately abusing the system and creating a backlog that is making it difficult for MSHA and for everyone involved,” he remarked.
To call attention to those companies, MSHA has posted a list on its website identifying operators, the number of citations and orders written against them and the percentage of the total they are contesting. The list covers the six-month period ending March 31.
Through June, the Federal Mine Safety and Health Review Commission had received 6,628 new cases since Oct. 1. At the same time a year ago, only 2,727 cases had been filed. With just three months left in the fiscal year, the Commission could end up with nearly 9,000 new cases.
Operators who feel that they are the victims of bad paper should not hesitate to exercise their due process right of appeal. Whether a violation exists at all is not the only reason to appeal a citation. MSHA has been calling a much larger percentage of violations significant and substantial and has increasingly asserted that citations are the result of high negligence or result in death. Many of these characterizations are questionable and, if left unchallenged, could result in much higher fines and a more serious history of violations. It is an operator’s right to challenge these elements as well as the violation itself. On the other hand, if an operator receives a settlement offer that would result in the modification of a citation for a clear-cut infraction that results in the citation being been fairly weighted for negligence and gravity, consideration should be given to accepting the settlement and removing the case from the Commission’s caseload.
IV. CHEMICAL SAFETY BOARD / NIOSH
John Howard’s six-year term as Director of NIOSH expires this month, and, in a short press release July 3, the CDC said he would not be reappointed. Even after his term expired, bi-partisan efforts continued to seek Howard’s reappointment.
Dr. Christine Branche, currently a NIOSH associate director, will fill Howard’s position until a new director is named.
Dr. Christine Branche, currently a NIOSH associate director, will fill Howard’s position until a new director is named.
A report released last month by the Chemical Safety Board (CSB) concluded that an explosion and fire at a solvent distribution facility in Kansas a year ago likely resulted from a metal float measuring device in a storage tank. Solvent was being transferred to the tank at the time of the explosion, which destroyed the facility and forced the evacuation of 6,000 nearby residents. No one died in the explosion.
The CSB issued recommendations to OSHA and chemical manufacturers to urge that Material Safety Data Sheets be changed to account for the potential of an explosion from the buildup of static charges inside tanks used to store non-conducive flammable liquids. Other safety recommendations were made as well.
In a separate investigation, the CSB concluded that human error was to blame for an accident at an ink and paint manufacturing facility in Massachusetts. The CSB also attributed the massive explosion and fire at the plant in November 2006 to the absence of safeguards, such as alarms and automatic shutoffs, which would have prevented a 10,000-pound mixture of flammable solvents from overheating in an unattended building.
No one died in the early morning blast, but a CSB member said community damage—at least 16 homes and three businesses damaged beyond repair—was the worst the CSB had seen in its 10-year history.
The Board urged that changes be made to national fire codes and in-state licensing and inspection procedures to improve safety at facilities handling hazardous materials.
A CSB investigation continues into an explosion at a sugar refinery in Georgia. The disaster claimed 13 lives, and led to House-approved legislation to control combustible dusts. Investigations also remain underway into accidents at two Texas refineries, an explosion and fire in Florida, a fire in Colorado, and a propane explosion at a store in West Virginia.
V. THE COURTS
The Wyoming Supreme Court has let stand a lower court ruling that found two mine officials guilty of “willful and wanton, intentional negligence” in a 2002 accident that left a miner paralyzed.
The decision means the mine’s safety manager is responsible for $3.9 million in damages and the mine manager, $5.5 million. The award is part of a $22 million judgment in the case, which involved a highwall accident at a surface coal operation.
The remainder of the award, $12.5 million, was attributable to the operator. However, the company was not named in the lawsuit because, under state law, companies that pay into the state’s workers’ compensation program are immune from such damages. MSHA’s accident investigation report concluded that the mine had failed to adequately insure highwall safety.
The decision means the mine’s safety manager is responsible for $3.9 million in damages and the mine manager, $5.5 million. The award is part of a $22 million judgment in the case, which involved a highwall accident at a surface coal operation.
The remainder of the award, $12.5 million, was attributable to the operator. However, the company was not named in the lawsuit because, under state law, companies that pay into the state’s workers’ compensation program are immune from such damages. MSHA’s accident investigation report concluded that the mine had failed to adequately insure highwall safety.
After the Twentymile decision in 2006, MSHA hardly needed another court victory to underscore the judiciary’s support for interpreting federal safety law as having given the agency free rein to cite operators for infractions committed by their contractors. Nevertheless, that is exactly what the Fourth Circuit Court of Appeals handed MSHA last month.
The case involved an accident that occurred during an elevator shaft sinking project being performed by an independent contractor at a West Virginia underground coal mine. A crane hoist failed, dropping a six-ton bucket. No one was seriously injured, but MSHA cited both the mine operator and independent contractor for the same six alleged violations.
The Appeals Court ruled that MSHA possesses complete and un-reviewable discretion to cite an operator and its contractor for identical violations of the Mine Act. Any other interpretation, the Court held, might encourage operators to use contractors to shield themselves from safety violations.
The jurists went a step further by holding that MSHA’s decision as to who to cite cannot be challenged in court. Their reasoning was based on a series of Supreme Court rulings. In those cases, the High Court concluded that judicial review of discretionary decisions is not available when a statute, such as the Mine Act, is drawn so broadly as not to provide any law or meaningful standards that can be applied to a federal agency decision.
Finally, the Fourth Circuit held that the authority of the Federal Mine Safety and Health Review Commission does not extend to review of MSHA’s discretionary, policy-based enforcement decisions.
The decision is the latest nail in the coffin for the view that mine operators should not be held liable for violations committed by their contractors. Two years ago, the D.C. Circuit emphatically reversed a Commission decision in Twentymile, holding that MSHA possessed discretionary authority to cite the operator, the independent contractor, or both, for safety violations committed by the contractor.
The latest development highlights the importance for operators to seek the advice of counsel in drawing up carefully worded indemnification clauses in contract documents. Contact Henry Chajet (hchajet@pattonboggs.com ,202.457.6511) or Mark Savit (msavit@pattonboggs.com, 303.894.6117) for assistance.
The case involved an accident that occurred during an elevator shaft sinking project being performed by an independent contractor at a West Virginia underground coal mine. A crane hoist failed, dropping a six-ton bucket. No one was seriously injured, but MSHA cited both the mine operator and independent contractor for the same six alleged violations.
The Appeals Court ruled that MSHA possesses complete and un-reviewable discretion to cite an operator and its contractor for identical violations of the Mine Act. Any other interpretation, the Court held, might encourage operators to use contractors to shield themselves from safety violations.
The jurists went a step further by holding that MSHA’s decision as to who to cite cannot be challenged in court. Their reasoning was based on a series of Supreme Court rulings. In those cases, the High Court concluded that judicial review of discretionary decisions is not available when a statute, such as the Mine Act, is drawn so broadly as not to provide any law or meaningful standards that can be applied to a federal agency decision.
Finally, the Fourth Circuit held that the authority of the Federal Mine Safety and Health Review Commission does not extend to review of MSHA’s discretionary, policy-based enforcement decisions.
The decision is the latest nail in the coffin for the view that mine operators should not be held liable for violations committed by their contractors. Two years ago, the D.C. Circuit emphatically reversed a Commission decision in Twentymile, holding that MSHA possessed discretionary authority to cite the operator, the independent contractor, or both, for safety violations committed by the contractor.
The latest development highlights the importance for operators to seek the advice of counsel in drawing up carefully worded indemnification clauses in contract documents. Contact Henry Chajet (hchajet@pattonboggs.com ,202.457.6511) or Mark Savit (msavit@pattonboggs.com, 303.894.6117) for assistance.
The Supreme Court declined last month to review a lower court ruling in the criminal case against W.R. Grace & Co., clearing the way for a high-profile trial that will begin in a Montana courtroom this year or early in 2009.
The case was brought against Grace in 2005 by the EPA for “knowing endangerment,” a violation of the Clean Air Act that carries a possible 15-year prison sentence on each of three counts. The knowing endangerment count lies at the heart of the allegation that seven top Grace executives intentionally concealed the dangers associated with asbestos-contaminated vermiculite at its now-closed Libby mine. One of the Grace officials has since died. Grace has denied any criminal wrongdoing.
The trial was originally set to begin in September 2006, but has been delayed by judicial rulings and subsequent appeals. Early in the proceedings, a district court judge ruled for Grace on a number of key issues. However, many of those decisions were overturned by an appeals court which in turn prompted appeals by Grace to the High Court.
The case turns in part on the definition of asbestos. That makes it of interest to mining companies that disturb rock containing so-called cleavage fragments, non-asbestiform amphiboles similar in chemical composition to asbestos but lacking common dimensional characteristics. Mining interests sued MSHA in April over the definition of asbestos in the agency’s final asbestos rule. Patton Boggs represents some of the plaintiffs in that case.
Henry Chajet (hchajet@pattonboggs.com) can provide further information.
The case was brought against Grace in 2005 by the EPA for “knowing endangerment,” a violation of the Clean Air Act that carries a possible 15-year prison sentence on each of three counts. The knowing endangerment count lies at the heart of the allegation that seven top Grace executives intentionally concealed the dangers associated with asbestos-contaminated vermiculite at its now-closed Libby mine. One of the Grace officials has since died. Grace has denied any criminal wrongdoing.
The trial was originally set to begin in September 2006, but has been delayed by judicial rulings and subsequent appeals. Early in the proceedings, a district court judge ruled for Grace on a number of key issues. However, many of those decisions were overturned by an appeals court which in turn prompted appeals by Grace to the High Court.
The case turns in part on the definition of asbestos. That makes it of interest to mining companies that disturb rock containing so-called cleavage fragments, non-asbestiform amphiboles similar in chemical composition to asbestos but lacking common dimensional characteristics. Mining interests sued MSHA in April over the definition of asbestos in the agency’s final asbestos rule. Patton Boggs represents some of the plaintiffs in that case.
Henry Chajet (hchajet@pattonboggs.com) can provide further information.
The Patton Boggs Health and Safety Law Group consists of attorneys who have resolved client problems in environmental, energy, natural resource, and safety and health law since the late 1960s. With lawyers in Washington, D.C., Alaska, Colorado, Texas, New Jersey, New York, and Northern Virginia, we have experience with EPA, OSHA, MSHA, NIOSH, DOT, OPS, Coast Guard, NTSB, FAA, FDA, CSP, the Chemical Safety Board, and almost every other federal and state government environmental, health, and safety agency here and in many foreign governments around the world. We speak a variety of languages; have backgrounds in business, science, engineering, industry, and government; and combine preventive law counseling with courtroom and lobbying expertise to achieve results. For more information go to: http://www.pattonboggs.com or contact Henry Chajet (hchajet@pattonboggs.com) at 202-457-6511, Mark Savit (msavit@pattonboggs.com) at 202-457-5269, Cole Wist (cwist@pattonboggs.com) at 303-894-6159, or John Austinjaustin@pattonboggs.com) at 202-457-6167
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