March-April 2004

Doctor’s Orders: It’s Time for a Checkup

Before your next inspection, conduct a legal review of environmental, health, and safety compliance.

By Cole A. Wist

A key component of any environmental, health, and safety compliance program is a periodic review of the program’s effectiveness. As we enter a new production season, it might be time to take those old programs off the shelf and undertake a critical review. As you contemplate this process, we offer the following checklist and suggestions.

1. What does your management know about violations? Operators must act immediately to cure, prevent, or protect against hazards and regulatory violations in order to prevent allegations that management acted willfully or with reckless disregard for employee safety. Records that must be reviewed include: workplace examination records, safety contact reports, accident or near-miss investigation reports, equipment pre-shift inspection cards, and training records. Prompt action to correct any noted violations must be taken and documented. Such documentation is critical to help avoid severe enforcement, individual personal civil or criminal penalties, and to reduce the likelihood of punitive damages in civil lawsuits.

2. Review enforcement actions from previous inspections. A review of your compliance history and prior inspectors’ comments regarding work conditions and program deficiencies are a good place to start as you prepare for an inspection. Where are you weak, and what are the inspector’s “hot button” issues? Be proactive, not reactive. For example, use the five leading causes of citations at your facility to create a compliance emphasis program that starts with daily reminders at the start of each shift, includes supervisor contacts during the shift, and a pre-announced new disciplinary emphasis for these leading causes of citations.

3. Review and evaluate employee suggestions or complaints and safety committee or union meeting notes. It is foolish if you provide channels for employees to voice safety concerns and never take the time to review the complaints, investigate their accuracy, take corrective action, if necessary, and report back to the employees about what you did. Design and implement systems that promote open channels of communication between management and employees on safety issues. Where do you think government inspectors get ideas about where to look for violations?

4. Are your training records up to date, and are they filed correctly? We see many errors in the way operators maintain employee training records. One mistake is keeping training files with personnel records. While MSHA is entitled to review an employee’s training records, providing personnel records to MSHA may violate an employee’s right to privacy. That is particularly the case with confidential medical information and other sensitive material. Keep these files physically separate. Another mistake is failure to ensure that new employees’ training is accurately documented. If you are hiring an experienced miner, make sure that you have a record of such experience and copies of pertinent training records. Finally, avoid mistakes related to the proper recording of hazard and task training. If your review of training records indicates an unfamiliarity with MSHA’s training requirements or the proper method of recording training, it might be time for a refresher course on these topics.

5. Review your contractors. A sloppy contractor could land you in trouble with an inspector and create hazards for your own employees. If you have not designed a contractor pre-qualification program, do so. If you have such a program, make sure that it is meeting your needs and is being followed. For contractors already on site, request regular meetings to discuss regulatory citations, safety complaints, and emergency and disaster procedures. A review of the contractor’s citations also should be undertaken under item #2 above. Finally, each contractor needs to be familiar with and train its employees on the specifics of your safety program. Provide or make readily available copies of your written safety programs.

6. What trends do you see in accident, injury, illness, and incident filings? Examination of injury trends may help you design more effective training. It is also important to your evaluation of front-line supervisors. If you have a department or crew that is always leading the pack on injury and illness reports, you should be asking why. Are safety rules not being enforced? Are safety violations not being reported? Are employees not receiving discipline for safety violations?

7. Regularly review your insurance coverage and policy exclusions. In many instances, we have seen that the adequacy of insurance coverage is a neglected topic of a risk management review. Work closely with your attorneys and insurance broker and design periodic coverage reviews into your audit of environmental, health, and safety compliance.

8. Audit your safety and environmental permits and licenses. Make sure that they are current and up to date. You know the regulators are going to review them, particularly if there is an accident or disaster.

9. Review process plans, drawings, maps, evacuation plans and routes, and emergency contact procedures. While no one wants to think that an emergency, disaster, or crisis may occur at their site, you must plan for this contingency. A regular review of these types of records is critical. Evacuation plans must be available to employees and be incorporated into each refresher training course.

We know that all operators are faced with similar time and financial crunches. However, effective planning, regular review, and training provide significant value and promote improved safety and regulatory compliance. Ask anew, challenge, audit, train, and be better prepared for your next inspection and investigation.

Cole Wist is a partner in the Denver, Colo., office of Patton Boggs LP. The law firm’s website is located at www.pattonboggs.com.

On Review

Watch Out for that Unescorted Inspector

Judge rules that the“accompaniment” provision is not a jurisdictional prerequisite to enforcement.

By Adele Abrams, Esq., CSMP

Administrative Law Judge Zielinski recently addressed the consequences of an inspection where the inspector enters the mine unaccompanied by an operator’s representative and is thrown out by the operator. The case involved D&F Deep Mine Buck Drift (ALJ, December 2003), a mine operated by the Rothermel family that was the subject of a permanent injunction obtained by MSHA after repeated violations of Section 103(A) of the Mine Act, for denying inspectors entry to the mine.
The most recent decision involved yet another violation of Section 103(A), which provides that authorized representatives of the Secretary “shall have a right of entry to, upon, or through any coal or other mine” for the purpose of conducting inspections authorized by the Act.

In the latest case, the inspectors were there to determine if a previous citation had been abated — a legitimate purpose, according to the ALJ. The owner denied entry because he was upset at the inspectors for entering the mine without his knowledge. He argued that Section 103(F) of the Act requires that a representative of the operator be given an opportunity to accompany the “AR” during an inspection, and that the only notification was given to an individual who was not trained to go underground. She did not notify anyone else because she could not find the mine intercom. The Secretary countered that the Act prohibits advance notice of inspections and that, in some situations, inspectors are not permitted to notify mine personnel underground before entering a mine.

The judge noted that compliance with the “accompaniment” provision is not a jurisdictional prerequisite to enforcement under the Act. In other words, the fact that an inspector did not wait for the operator to accompany him will not suffice to vacate a citation.

Although the judge found it “inadvisable” for inspectors to enter the mine without underground miners’ knowledge (especially since blasting could have occurred and presented a hazard), once their presence was made known, there was no basis for preventing them from conducting the inspection. The citation under Section 103(A) was affirmed, with high negligence.

NIOSH testimony found “too speculative”
Even the government must choose its expert witnesses carefully, as noted by ALJ Manning in a recent decision involving Plateau Mining Corporation (ALJ, December 2003). The case involved three citations with proposed penalties of $45,340 in the case at an underground coal mine in Utah. Extensive testimony and documentary evidence were considered in the case, which involved a sudden release of methane that caused explosions and ground falls, killing two miners and injuring eight others. Although all three citations were affirmed, the total penalties were cut to $26,200.

The analysis of the accident involved soliciting technical input from mining personnel, MSHA enforcement officials, and other experts. The judge cautioned that “establishing the cause does not necessarily establish the violation” and that factual testimony on explosions or ignitions does not establish a violation.

In presenting its case, the agency relied heavily on the testimony of Dr. Peter Swanson, a research geophysicist with the National Institute for Occupational Safety and Health (NIOSH). Dr. Swanson provided information on the roof pressures on the longwall system at the mine and tried to analyze seismic waves to determine the nature of the event.
The mine operator objected to his testimony, and to the introduction of Dr. Swanson’s research paper, claiming that it “lacked scientific basis and…sufficient reliability.” Plateau invoked the “Daubert” principles concerning qualification of expert witnesses. Under the Supreme Court decision, a judge has a duty to act as “gatekeeper” to ensure that proffered expert scientific or engineering testimony rests on a reliable foundation.

Although Judge Manning permitted Dr. Swanson to testify, he did not base his decision on the information, finding that it did not offer reliable evidence and that the methodology used had not been tested or reviewed through the NIOSH peer review process.

Although the ALJ denied Plateau’s motion to strike the NIOSH expert’s testimony, he noted that it was “too speculative for use in a court of law.” Because he determined that he could not consider Dr. Swanson’s testimony, he also refused to consider the testimony and exhibits of the expert witness that Plateau called in opposition.

To “P” or not to “P”?
MSHA issued a Program Information Bulletin (No. P04-5) that explains the basis for assigning a “P-Code” for noise overexposure. The bulletin, which applies to both metal/nonmetal and coal mining operations, was released on Jan. 27, 2004.

It clarifies that mine operators cannot request P-Codes from the agency, and that the codes will be issued at the discretion of MSHA’s district managers on a case-by-case basis.

P-Codes are issued where all feasible engineering and administrative controls have been exhausted and miners’ noise exposure cannot be reduced to the permissible exposure limit (90 dBA). The code is an administrative device that requires the use of protective equipment by exposed miners, and it allows MSHA to track special overexposure situations. However, it does not constitute a Petition for Modification (which is not a legal option for deviation from health standards).

When MSHA initially adopted its revised noise rule, 30 CFR Part 62, it was expected that P-Codes would no longer be required. However, this has not proven to be the case. A P-Code will only be available where the operator has implemented all feasible controls, enrolled all affected miners in a Hearing Conservation Program, provided hearing protection (and ensured its use), and posted procedures for administrative controls on the mine bulletin board. In these situations, an operator will not be cited prior to a P-Code being assigned.

If, however, MSHA determines that there has been an overexposure and the operator has failed to comply with some requirement under §62.130, a citation would be issued and abatement required.

If the PEL cannot be satisfied through implementation of the steps above, a P-Code may be assigned to terminate the citation.

Once a P-Code is assigned, the operator must abide by the requirements, and the P-Code will be periodically reviewed by MSHA to determine if it is still justified.

Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call 301-595-3520.