ABA Occupational Safety and Health
Law Committee
2013 Midwinter Meeting
MARCH 8, 2013
LAGUNA BEACH, CALIFORNIA
What is MSHA Digging Up Now?
Developments in the Practice of
Mine Safety and Health
Mark E. Heath
Spilman, Thomas & Battle, PLLC
PO Box 273
Charleston, WV 25321-0273
304-340-3800 (Office)
304-542-2849 (Cell)
mheath@spilmanlaw.com
www.spilmanlaw.com
AGENDA
1.
2.
3.
4.
5.
6.
7.
8.
9.
2012 FATALITY and MSHA ENFORCEMENT DATA
NEW POV REGULATIONS, EFFECTIVE IN MARCH?
PROXIMITY DEVICES
DUST STANDARDS
NEW FEDERAL LEGISLATION COMING?
MSHA FOCUS ON 105(C) CASES
CRIMINAL LAW UPDATE
ADVANCE NOTICE
SUITS AGAINST MSHA
Slide 2
1. 2012 Fatality and
Enforcement Data
• 2012 was record setting for low fatality and injury rates.
• 36 total – 19 coal and 17 metal/non-metal. Second lowest year on
record. (Seven in WV, five in KY and one in Illinois.)
• Of the 36 in coal and non-metal, eight fatals involved miners with less
than one year of experience at the mine
• 13 of the 36 fatals had less than one year at job or task
• 33 fatalities since 1984 were from continuous mining machines.
(Proximity regulations in process and MSHA believes three 2012 fatals
would have been prevented by the regulations. Secretary Main reports
Alliance Resources installing on continuous miners, Consol and Peabody
are working on applying to other section equipment.)
Slide 3
1. 2012 Fatality and
Enforcement Data
• Of 19 in coal:
– Four powered haulage
– Three slip and fall
– Three machinery
– Two rib falls
– Two roof falls
– Five killed were supervisors (26 percent)
– Two contractors (11 percent)
– In last 14 months, down 150 MMUs; MSHA likely
overstaffed, shifting personnel to other states.
Slide 4
Slide 5
1. Fatality and
Enforcement Data
Slide 6
1. Fatality and
Enforcement Data
Slide 7
1. Fatality and
Enforcement Data
Slide 8
1. 2012 Fatality and
Enforcement Data
Slide 9
1. 2012 Fatality and
Enforcement Data
Federal Mine Safety Health and Review Commission
• Cases peaked in 2011 with back log of 18,170.
• Now averaging 11,000 new cases
• Resolving about 11,000 a year, to stay even.
• Now have 32 ALJs hearing cases.
• Commission at Three Members, Chairwoman Jordan, Members
Young and Nakamura. (Two vacant seats – Duffy and Cohen off)
Slide 10
1. 2012 Fatality and
Enforcement Data
Slide 11
MSHA Enforcement
A. Flagrant Violations
•
•
•
•
•
Created in the 2006 Miner Act.
Penalties range now up to $242,000
Most penalties are in the upper range.
Has been issued over 137 times
Most common standards are accumulations
(75.400) and ventilation (75.370)
MSHA Enforcement
Interesting trends in Flagrant usage.
First flagrant cases before ALJs for hearing and one decision
is at the Commission.
Numbers have stayed consistent.
2012 – 19 assessed ($181,700 to $135,000)
2011 – 38 flagrant (21 are UBB)
2010 – 17 flagrant
2009 – 21 flagrant
2008 – 30 flagrant (6 from Crandall Canyon)
2007 – 19 flagrant
2. POV Coming in
March 2013
• Pattern is in 1977 Act.
• Regulations enacted in 1990.
• Not used prior to 2007
• MSHA published final regulation in January
2013, those regulations are effective
March 25, 2013
Slide 14
Pattern of Violations is in the 1977 Mine Act.
•
Regulations promulgated in 1990 and not used.
•
•
MSHA began to use pattern in 2007.
If mine is placed on pattern order, every SS citation or order
requires that area of the mine to be closed, the condition
abated and rechecked by MSHA.
In total, 94 mines have gone through pattern and three
have been placed on Pattern Status. An additional four
were given letters in November 2012. They are in pattern
review process now.
•
Slide 15
Old Pattern
Process
• Once a mine has been identified as having a potential
pattern, the mine develops an S&S reduction plan and
implements the plan.
• Each plan has a targeted reduced S&S rate for citations
and orders issued at the mine.
• MSHA will conduct a 60 to 90-day full inspection of mine.
• If the mine does not meet the target S&S rate, a pattern
order is issued.
Slide 16
Pattern Process
• Every S&S citation or order requires that area of the mine
to be shut down, the men withdrawn, and the condition
repaired.
• The area remains closed until MSHA re-inspects it and
abates the violation.
• Mine stays on pattern until there is a full inspection of the
mine with no S&S citations or orders.
Slide 17
New Rule
• Eliminates the initial screening and the potential pattern of
violations (PPOV) notice and review process.
• Estimated cost is $5.9 million, but “saves” $12.6 million.
MSHA claims will prevent 1,800 injuries over 10 years.
• Eliminates the existing requirement that MSHA can consider
only final orders in its POV review.
• Provides right to expedited hearing before the Review
Commission under §105(b)(2) of the Mine Act , if POV closure
order issued under Section 104(e).
Slide 18
New Rule
• Access to the specific POV criteria and the compliance data provides
mine operators the means to evaluate their own records and
determine whether they are approaching the criteria levels for a POV.
• Mine operators will have to be vigilant, keep close track of all citations,
and familiarize themselves with MSHA’s web-based Pattern of
Violations Monthly monitoring tool if they want to avoid getting hit
with a “pattern of violation” from MSHA.
• In addition, MSHA sees more accountability on the part of operators,
since the agency will no longer issue a PPOV warning letter to
operators.
Slide 19
§ 104.2 - Pattern criteria
• At least once each year, MSHA will review the compliance and accident,
injury, and illness records of mines to determine if any mines meet the
pattern of violations criteria.
• MSHA will post the POV criteria on its Web site.
• MSHA will not rely on repeat violations of one standard to determine
POV status. (Almost everyone met it.)
Slide 20
§ 104.2 - Pattern criteria
•
MSHA’s review to identify mines with a pattern of S&S violations will include:
(1) Citations for S&S violations;
(2)
Orders under section 104(b) of the Mine Act for not abating S&S
violations;
(3) unwarrantable failure citations or order;
(4) Imminent danger orders;
(5) 104(g) withdrawal orders for untrained miners;
(6)
Other non 104(e) enforcement measures that have been applied at
the mine;
(7)
Other information that demonstrates “a serious safety or health
management problem at the mine, such as accident, injury, and
illness records”; and
(8)
Mitigating circumstances.
Slide 21
What “other
information”?
In comments for the final rule, MSHA stated this “other information” that will be
considered may include, but is not limited to, the following:
• Evidence of the mine operator’s lack of good faith in correcting the problem that
results in repeated S&S violations;
• Repeated S&S violations of a particular standard or standards related to the same
hazard;
• Knowing and willful S&S violations;
• Citations and orders issued in conjunction with an accident, including orders under
sections 103(j) and (k) of the Mine Act; and
• S&S violations of health and safety standards that contribute to the cause of
accidents and injuries.
Slide 22
Mitigating Factors
•
The mine operator will have to establish mitigating circumstances with MSHA
before the Agency issues a POV notice.
•
MSHA said it will consider three mitigating factors to keep a mine off of POV
status:
– An approved and implemented corrective action program to address the repeated
S&S violations accompanied by positive results in reducing S&S violations;
– A bona fide change in mine ownership that resulted in demonstrated
improvements in compliance; and
– MSHA verification that the mine has become inactive.
letter, not a solution)
Slide 23
(Worked in first POV
What if the Data Retrieval System is wrong?
•
The operator can request a conference with the field office supervisor or district
manager for the sole purpose of discussing discrepancies in the data (e.g., citations
that are entered incorrectly or have not yet been updated in MSHA’s computer
system, Commission decisions rendered, but not yet recorded, on contested
citations, and citations issued in error to a mine operator instead of an
independent contractor at the mine).
•
At this meeting, mine operators can question the underlying data on which the POV
is based and provide documentation to support their position. MSHA will make
changes, as appropriate, which could result in rescission of the POV notice if MSHA
verifies data discrepancies and the mine no longer meets the criteria for a POV.
•
The meeting does not affect the 90-day schedule for abatement of the POV.
Slide 24
The Corrective Action
Program
• If a mine is coming close to reaching POV status, the mine operator may
submit a corrective action plan (“CAP”) to MSHA.
• MSHA would consider a safety and health management program as a
mitigating circumstance in the pattern of violations proposal when it:
(1) Includes measurable benchmarks for abating specific violations that could lead to a
pattern of violations at a specific mine; and
(2) Addresses hazardous conditions at that mine.
• CAP guidelines will be found on MSHA’s website on the POV single source
page.
Slide 25
104.3 - Issuance of
notice.
• When a mine has a pattern of violations, the District Manager will issue a
pattern of violations notice to the mine operator that specifies the basis
for the Agency’s action. The District Manager will also provide a copy of
this notice to the representative of miners.
• MSHA will no longer provide a notice to mine operators that a mine’s
violation history is approaching a pattern of S&S violations.
• Under the final rule, the mine operator is responsible for knowing if the
mine’s violation history is approaching a pattern of S&S violations
Slide 26
§ 104.3 - Issuance of
notice.
•
The mine operator shall post the pattern of violations notice issued under this part
on the mine bulletin board.
•
The pattern of violations notice shall remain posted at the mine until MSHA
terminates it under § 104.4 of this part.
•
If MSHA finds any S&S violation within 90 days after issuance of the pattern notice,
MSHA will issue an order for the withdrawal of all persons from the affected area,
except those persons referred to in section 104(c) of the Mine Act, until the
violation has been abated.
•
If such a withdrawal order is issued, any subsequent S&S violation will result in a
withdrawal order that will remain in effect until MSHA determines that the
violation has been abated.
Slide 27
§ 104.4 Termination of
notice.
•
Termination of a section 104(e)(1) pattern of violations notice shall occur when an
MSHA inspection of the entire mine finds no S&S violations or if MSHA does not
issue a withdrawal order in accordance with section 104(e)(1) of the Mine Act
within 90 days after the issuance of the pattern of violations notice.
•
The mine operator may request an inspection of the entire mine or portion of the
mine.
•
MSHA will not provide advance notice of the inspection and will determine the
scope of the inspection. Inspections of portions of the mine, within 90 days, that
together cover the entire mine shall constitute an inspection of the entire mine for
the purposes of this part.
Slide 28
Pattern Process
• Effective date is March 25, 2013.
• Biggest question is whether we will have any lawsuit
filed to stop enforcement. Being evaluated by all
associations. I believe suits are likely.
Slide 29
3. Proximity Devices
• Final Rule Stage/Final Action Scheduled for May.
• Goal of new rule is to “strengthen protection for miners by reducing the
potential for pinning, crushing, or striking fatalities and injuries to miners
who work near continuous mining machines.”
Key Provisions:
• Require mine operators to install proximity detection systems on
continuous mining machines in underground mines according to phased-in
schedule for newly manufactured and existing equipment.
• The proximity detection system must cause machine to stop no closer than
3 feet from a miner.
• Establish performance, examination, and maintenance requirements for
proximity detection systems
• Require training for installation and maintenance
Slide 30
4. Respirable Dust
• Comment period ended 5/31/2012 MSHA target is June 2013, but has
not gone to White House yet.
• Rule is very complicated and detailed
• Additional training will be provided once rule is final and takes effect
• Cost of testing along is astronomical.
Key Provisions:
Reduction of the current respirable coal mine dust exposure standard:
•
•
Lower the existing concentration limits of 2 milligrams for respirable coal dust to 1
milligram
Phased-in over a two-year period
Full-shift sampling
• A single, full-shift sample collected by MSHA or the mine operator used to
determine compliance rather than averaging multiple dust samples of different
miners' exposures per the current requirements. Up to 12 hours and use formula
to go back to 8 hours.
Respirable Dust
Continuous Personal Dust Monitor (“CPDM”):
• CPDM would electronically store all respirable dust sampling data
collected during a shift. It is intended that data would be sent to
MSHA electronically.
Single shift sampling allowed.
• CPDMs would be optional for surface coal mines and for nonproduction areas of underground coal mines (such as outby areas)
under the final rule.
• Mandatory CPDM Performance Plan - intended “to ensure that no
miner working on an MMU is exposed to respirable dust
concentrations in excess of the applicable standard” and must be
approved by the District Manager 7.
Respirable Dust
Continuous Personal Dust Monitor (“CPDM”):
• Mandatory CPDM Performance Plan - intended “to ensure that no
miner working on an MMU is exposed to respirable dust
concentrations in excess of the applicable standard” and must be
approved by the District Manager.
Redefine the term “normal production shift”
• Require sampling when production is equivalent to or greater
than the level of average production level over the last 30
production shifts. Under existing rules, valid respirable dust
samples can be taken when the production level is greater than
50 percent of average production.
Respirable Dust
Additional medical surveillance
• Requires spirometry testing, occupational history, and symptom
assessment to be implemented, in addition to the chest x-ray
exam currently required for underground miners. Medical
surveillance for surface coal miners also required.
Extended work shifts
• Requires sampling of extended work shifts to account for
occupational exposures of greater than eight hours per shift.
Under existing rules, the sampling device monitors for eight
hours, even when a miner works a longer shift.
Slide 34
5. Miner Act II?
New Federal Mine Safety Legislation likely this year?
Changes to federal law after UBB were delayed until investigations completed
All investigations that issue reports are done.
Only criminal case remains
Several Members of the House and Senate promised families they would
address perceived short comings in the Mine Act when investigations were
complete.
• Members now believe they need to move a bill to honor those commitments
• Miller and Capito bills expired when old Congress ended in December 2012
• Bills likely from Miller, Rockefeller/Manchin and others?? Now suggested they
work on oversight first.
•
•
•
•
•
Slide 35
Miner Act II?
Likely topics for new legislation from old bills
– MSHA subpoena power for documents and witnesses
– Prohibit two sets of books
– Increase ventilation penalties to $222,000
– Black box technology on mining machines to monitor and record methane,
oxygen, carbon monoxide and dust levels
– Lower coal dust limits six months after enacted.
– Independent board for any accident with three or more fatalities
– Increase criminal penalties
– Update pattern process
– Changes to 105(c) whistleblower protections
– Changes to SS and other presumptions???
• Always a danger of additional provisions being added when any bill is debated and
voted on.
•
Slide 36
6. 105(c) Claims?
• A 105(c) claim is where a miner alleges he or she was terminated,
disciplined or otherwise subjected to an adverse employment action due
to his or her complaints about safety, testimony or statements to MSHA
regarding safety, or due to a safety-related work refusal.
• To prove a discrimination claim under section 105(c) of the Act, a
complaining miner bears the burden of establishing:
(1) that he engaged in protected activity and
(2) that the adverse action complained of was motivated in any part
by that activity.
Sec'y of Labor on behalf of Pasula v. Consol. Coal Co., 2 F.M.S.H.R.C. 2786, 2799 (Rev.
Comm. Oct. 1980), rev'd on other grounds, 663 F.2d 1211 (3rd Cir. 1981); Sec'y of
Labor on behalf of Robinette v. United Castle Coal Co., 3 F.M.S.H.R.C. 803 (Rev. Comm.
Apr. 1981).
Slide 37
105(c) Claims
are on the Rise
• After issues relating to fears of discrimination and retaliation came to light
during congressional hearings on UBB, MSHA stepped-up efforts to
educate miners about 105(c), process discrimination complaints, and take
legal action on behalf of miners who were fired, laid off, suspended or
otherwise suffered adverse employment action.
• In a recent MSHA press release, Joseph Main, Assistant Secretary of Labor
for Mine Safety stated, "Since I arrived at MSHA nearly three years ago,
one of my top goals has been to educate miners about those rights and
protections, and to rigorously enforce them."
• Due to Main’s campaign, there has been marked increase in the number
of temporary reinstatements and filed complaints.
Slide 38
105(c) Claims
are on the Rise
• According to MSHA, the number of requests for temporary reinstatements
the department submitted more than quadrupled in the last four years:
1993-2008:
2009-2012:
2012
6 per year
101 (25 per year)
46
• Discrimination complaints also increased dramatically:
2007-2009:
2010-2012:
2012
39
70
34
Slide 39
When Does TR End?
• Under the Mine Act, a miner's temporary reinstatement remains in effect
“pending final order on the complaint.” 30 U.S.C. § 815(c)(2).
• What about when the Secretary determines that the allegations made by the
miner in his or her discrimination complaint do not constitute a violation of
Section 105(c)(1) of the Mine Act?
• On August 14, 2012, the 6th Circuit reversed the Commission’s decision of
Mark Gray v. North Fork Coal Corp., 33 F.M.S.H.R.C. 589 (Rev. Comm. January
2011) holding that temporary reinstatement continues until the Commission
issues a final order regarding the merits, even if the Secretary has declined to
pursue the discrimination complaint and the miner files a claim on his own
behalf.
• Dunne v. Vulcan Contruction Materials, LAKE 2011-327-M, 11-2860, (7th Cir.
2012) a case involving very same issue as Mark Gray v. North Fork Coal Corp.,
also determined TR ends when MSHA does not issue a complaint.
Slide 40
7. Criminal Law
• Number of criminal prosecutions has grown in the last few
years.
– Significant efforts to get up the chain to highest levels. Now using
criminal law outside of mine act – conspiracy, false testimony, etc.
• UBB Stover convicted of lying to special investigators and
attempting to destroy documents. (4th Circuit affirmed)
• Aracoma – Not the fire. Company prosecuted for that. False
escapeway drills involving five foreman. Also have federal
convictions and permanent loss of certifications – for life.
• Illinois – false escapeway drills, foreman pled guilty.
Slide 41
7. Criminal Law
• S.WV. – Number of cases where acted as a foreman, no
foreman cert. One at UBB.
• Federal No. 2 Investigation – Centers on seal checks.
• UBB – Ongoing over explosion that killed 29. Superintendent
pled guilty and sentenced to 21 months in jail.
• Crandall Canyon – company convicted criminally; no
individuals charged.
• Manalapan Mining in KY - Company and number of foreman
plead guilty for no protective canopies and not noting hazard
in examination book.
• Number of Kentucky prosecutions – running belt without fire
suppression; employees in mines with fans off, etc.
• MSHA inspector just sentenced to probation for not
inspecting six metal/non-metal mines in Tenn.
Slide 42
8. Advance Notice
• What is advance notice?
• Potential penalties for advance
notice under state and federal law
• U. S. District Court Injunctions
Slide 43
8. Advance Notice
• 103(a) is an original section of the Federal Mine
Safety and Health Act of 1977.
• 103(a) states that “[N]o advance notice of an
inspection shall be provided to any person . . . .”
Slide 44
8. Advance Notice
Advance notice is defined by simply telling somebody in the mine that
inspectors are on mine property before the inspectors are able to perform
their inspection.
In MSHA’s view, this creates a problem because if the underground crew
knew that inspectors were present beforehand, they may ignore violations
until inspectors arrive on mine property.
Believes it is also obstructing an inspector. Similar to locking the gate.
Slide 45
8. Advance Notice
• On August 26, 2010, MSHA released what is
called a Program Information Bulletin (PIB)
explaining the importance of 103(a) and how
they expect mine operators to comply with
103(a).
• In the PIB, MSHA warns that there are stiff
consequences for anyone that provides
advance notice.
Slide 46
8. Advance Notice
•
On April 21, 2010, MSHA launched inspections of 57 coal mines. These
impact inspections followed the April 5, 2010, explosion at Upper Big
Branch.
•
During two of the impact inspections, MSHA discovered that operators
had warned miners working underground of MSHA inspectors either at
or en route to the mine site.
•
MSHA stated that “[m]ining personnel who give advance notice are
showing contempt for the law and for the safety and health of miners . . .
They know how to fix problems when the MSHA inspector is on site, yet
they ignore the rules and put miners at risk the rest of the time. It’s not
only illegal, it’s reprehensible.”
Slide 47
CAM Mining
•
First injunctiosn obtained on Rosebud Mining in Pennsylvania and Manalapan Mining in
Kentucky. CAM is the third.
•
Filed on June 23, 2011
•
Civil Action 7:11-CV-0104-ART
•
MSHA has filed a federal court injunction proceeding against CAM Mining. Filing received
nationwide press coverage.
•
Alleges that the mine gave advance notice to prevent a smoking search and names foreman
involved by name. It asks the Court to issue a federal court injunction barring any future
advance notice.
•
Further violations of the Judge's order, i.e. advance notice being given again, will result in
contempt proceedings and sanctions.
•
Temporary Restraining Order entered on June 30, 2011. Injunction issued in settlement on
July 18, 2011.
Slide 48
CAM injunction
TRO language as follows:
ORDERED that defendant, its agents, servants, employees, vendors, visitors,
all persons in active concert or participation with it and all other parties
who receive actual notice of this order by personal service or otherwise be
enjoined from interfering with, hindering or delaying the Secretary's
inspection of the Number 28 mine by giving advance notice to any person
working underground of a pending inspection by the Mine Safety and
Health Administration, United States Department of Labor. Advance notice
constitutes any means of communication including, but not limited to, the
mine telephone or any other device and includes any use of signals or
devices intended to give notice of an inspection. Notice may only be given
when an inspector from the Federal Mine Safety and Health Administration
specifically orders that such notice be given as an exception to the
prohibition as provided for in the Act;
Slide 49
8. Advance Notice
• Current issue on calling superintendent’s at home.
• You may phone the mine superintendent or mine manager at
his home to inform them that MSHA inspectors are at the
mine and that they may need to be accompanied.
• You may do this because there are no mine phones in the
home and no way to notify miner’s underground.
• Still better to tell the inspector what you are doing and why.
Slide 50
8. Advance Notice
• A number of criminal cases on advance notice.
• First was a west Kentucky case involving Alliance Coal subsidiary.
• Stover convicted of lying about giving advance notice.
• Dave Hughart, in a Nov. 28, 2012, information filed, alleges he
gave advance notice and conspired with others to violate mining
laws. Not sentenced yet.
• Manalapan Mining indictments
Slide 51
9. Can you sue MSHA?
• Developed out of the Aracoma fire from 2006.
• Widows of the two miners killed filed a Federal Tort Claim
• At the U.S. District Court stage, Judge Copenhaver dismissed
the claim, ruling West Virginia did not recognize claims against
private mine inspectors.
• The Fourth Circuit reversed and sent a certified question to
the West Virginia Supreme Court.
• The West Virginia Supreme Court determined that West
Virginia law does recognize a tort action against private mine
inspectors. Bragg and Hatfield v. U.S., No. 12-0805 (WVSCt.,
Feb. 5, 2013)
• The case now proceeds on.
Slide 52
For further information, contact
the Spilman, Thomas & Battle
MSHA Safety Group
Mark E. Heath
Member
304-340-3843
Alexander Macia
Member
304-340-3835
Dennise R. Smith
Senior Attorney
304-720-4076
R. Christopher Anderson
Counsel
304-720-4068
Angela L. Beblo
Associate
304-340-3852
www.spilmanlaw.com
West Virginia
North Carolina
1.800.967.8251
Pennsylvania
Virginia