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A Pattern of Things to Come
There’s been a lot of speculation about how the Mine Improvement and New Emergency Response (MINER) Act of 2006 will affect future Mine Safety and Health Administration (MSHA) enforcement activities. Many predict an increasing use of significant and substantial violations closure orders (pattern of violations orders), established by Section 104(e) of the Mine Act, as a technique to demonstrate the new “get tough” attitude at MSHA. Indeed, the political pressure is undeniable; MSHA must show Congress, the media, and organized labor that the agency is serious about enforcement. The risk for overreaction in this climate, however, is immense. Nevertheless, the purpose of this article is educational, not editorial, and is designed to remind operators of the basics of this enforcement tool and to suggest strategies to better anticipate and prevent pattern of violations orders. Section 104(e)(1) of the Mine Act states the following: If an operator has a pattern of violations of mandatory health or safety standards in the coal or other mine which are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other mine health or safety hazards, he shall be given written notice that such pattern exists. If, upon any inspection within 90 days after the issuance of such notice, an authorized representative of the secretary finds any violation of a mandatory health or safety standard which could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, the authorized representative shall issue an order requiring the operator to cause all persons in the area affected by such violation, except those persons referred to in subsection (c), to be withdrawn from, and to be prohibited from entering, such areas until an authorized representative of the Secretary determines that such violation has been abated. Obviously, such a closure order is one of MSHA’s most severe enforcement tools from the perspective of interrupting production operations. Once placed on a pattern, a mine receives closure orders for every significant and substantial (S&S) violation until a complete inspection without any S&S violations ends the pattern. To anticipate whether you may be in line for a pattern of violations finding, we recommend an ongoing review and analysis of MSHA citation history at your mine. Specifically, when determining the potential for future patterns screening and notice, operators should establish an enforcement database. This database should contain the following information: 1. A two-year period of the mine’s identification number enforcement history. 2. The number of inspector hours logged under the mine’s identification number for this two-year period. 3. A list of standards for which violations have been cited as S&S. 4. Classification of cited standards by hazard groups (e.g. ventilation, ground control, mobile equipment, health). The total number of S&S citations for each hazard group should be tracked. 5. The overall rate of S&S citations per inspector hour on the site. 6. The rate of S&S citations for each six-month time period included in the mine’s two-year history. 7. The number of unwarrantable failures issued for each six-month time period in the mine’s two-year history. 8. The number of “other enforcement” actions issued against the mine for each six-month time period in the mine’s two-year history. Other enforcement actions include: (a) special assessments (including excessive history penalties for non-S&S); (b) failure to abate closure orders; (c) imminent danger orders; and (d) high negligence, non-S&S citations. After establishing the database, an operator should perform ongoing analysis and trends by evaluating current and prior enforcement records. Reviews at six-month intervals appear appropriate given MSHA’s inspection schedules and annual pattern screening. The following comparisons may aid the determination of a mine’s enforcement trend: 1. Comparing the overall number of S&S violations for the current six months to the last three six-month time periods. 2. Comparing the number of violations for each standard and hazard category cited during the current six-month period to each preceding six-month time period. 3. Comparing the rate of S&S violations per inspector hour for the current six-month period to the preceding time periods. 4. Comparing the total number of unwarrantable failures for the current six-month period to the preceding time periods. 5. Comparing the current six months totals of “other enforcement” actions to the prior time period. Since MSHA utilizes incidence rates in its screening process, an operator should also compare its current accident and injury rate to each six-month time period of the preceding two-year history. An operator’s reviews should be ongoing and a new database of analysis should be created every six months. However, the operator should retain the mine’s enforcement and incident rate history for future use. Routine safety and health programs are obviously designed to prevent hazards and enforcement risks. A self-initiated pattern analysis allows these routine programs to become more tailored and to focus on potential pattern causes. For example, an analysis raising concerns about repeated mobile equipment violations could trigger a maintenance department audit and/or emphasis of preventive maintenance. Safety program components may include the following: 1. The company’s safety rules and policies; 2. Programs for employee training; 3. Employee disciplinary policies encompassing safety rule violations; 4. Supervisory training; 5. Self-inspection and audit programs; 6. Preventive maintenance; 7. Safety incentives; 8. Employee grievances and suggestion programs; 9. Safety reminder programs (e.g. “line outs,” safety meetings, safety newsletters); 10. Supervisory visits and oversight of work force, including safety checks; and 11. Ongoing review of MSHA’s enforcement activity and the site’s accident history. Operators of mines identified through MSHA initial pattern screening, and notified of potential pattern enforcement, may use the same program factors and citation analysis techniques to develop a written prevention program for submission to the district manager under 30 C.F.R. § 104.4. In addition, for comparative analysis such operators may want to obtain enforcement statistics for their entire district for similar mines.
New Risks Posed by MINER
The belt buckle collection in my office, started in 1977, tells the amazing story of incredible safety achievements by dozens of mining companies, most of which have vanished except from our memories. But the memories help define the risks of the Mine Improvement and New Emergency Response (MINER) Act of 2006 — the first mine safety law amendments passed by Congress and signed by the President since 1977. Congress was searching for a solution to prevent future tragedies like the Sago disaster, as well as a political compromise to take mine safety off the table during the upcoming election season. The results are as yet unknown, but changes to the law created by the MINER Act include the following: 1. Penalty increases for all mines (e.g. maximums of $220,000 for “flagrant” violations, and minimums of $2,000 for unwarrantable failure violations, and $4,000 for unwarrantable failure orders); 2. A 15-minute Mine Safety and Health Administration (MSHA) notification mandate for all mines that suffer a fatal accident or defined accidents likely to result in a fatality; 3. New coal mine mandates for rescue and recovery plans, mine rescue teams, additional supplies of oxygen underground, and lifelines, as well as electronic location and communication devices, 4. A reorganization of National Institute for Occupational Safety Health (NIOSH) to advance mine safety and engineering research; and 5. Research and scholarship funding for mine safety. Both the Federal Mine Safety and Health Act of 1977 and the Coal Mine Safety Act of 1969 followed tragic mine disasters. The 1977 Mine Act combined coal, metal, and other minerals under one law, placed MSHA under the auspices of the Department of Labor (DOL), and added the “pattern of violations” closure order to the many then-existing violations, fines, and orders in the agency’s arsenal. These measures were in response to claims that there was not enough enforcement and insufficient agency powers. Sound familiar? Repeating patterns The maximum civil penalty since the 1977 Mine Act has increased sixfold (from $10,000 to $60,000). Another fourfold increase is detailed in the new MINER Act ($220,000), which also adds minimum penalties. While the inducements for new technology appear laudable (even if some are not immediately achievable), the focus on penalties and 15-minute reporting concerns this author, who witnessed an MSHA enforcement and regulatory frenzy following the 1977 Mine Act that appears to be on the verge of repeating itself. Proof that there is an over abundance of enforcement authority and regulatory mandates, without the new law, was presented by Davitt McAteer, the former MSHA chief. When he testified before Congress in support of new laws, someone should have reminded him that during his eight years as the head of MSHA (when there were more fatalities than today), he never used the pattern-of-violations closure order, never issued rules mandating the technology he now advocates, and issued only a few “maximum” penalties. Unfortunately, no one challenged his Congressional testimony. Worse yet, MSHA continues to falter without the leadership of an assistant secretary. The agency abandoned its role and agreed that the state of West Virginia should put McAteer in charge of the Sago federal and state public hearings. Having served as counsel to the company that was the target of McAteer’s last public hearing (1999-2000), this author can report that his deputy announced their intention to conduct a criminal investigation before the accident cause or the facts were known, furthered the interests of a striking union, and generally presented investigation “theater” to the press and a suffering community. Fortunately, the facts did not support their predetermined outcome. The criminal investigation was abandoned, and the case settled favorably, but only after the process abuse put a cloud over the heads of numerous hard-working supervisors and wasted massive resources for an investigation that could have been far more effectively conducted with traditional, proven procedures. Hopefully, the Sago investigation will not be a launching pad for bad policy, theater, and pre-election press goals. Regulatory funding Since MSHA was created in 1978, its 2,000 to 2,500 employees have been led by various Democratic and Republican appointees who served as Assistant Secretary of Labor, as well as by career agency leaders who rose from the ranks of mine inspectors and MSHA district managers, with extensive experience, including industry or union experience. Since 1978, MSHA funding levels have amounted to approximately $300 to $500 per year for each miner. By comparison, Occupational Safety and Health Administration (OSHA) funding levels have been approximately $3 per year for each covered employee, including those in far more hazardous occupations like construction, logging, and chemicals. MSHA has enforced hundreds of pages of comprehensive and detailed safety regulations and has lodged millions of hours of mine site inspections each year. MSHA inspectors and regulators have had the power to close any mine at any time, impose millions of dollars in penalties, and issue new regulations, including emergency regulations effective immediately. But such actions have almost never been taken because they were not warranted. In fact, company commitment to safety and health, the proven relationship between safe and profitable mines, technology advances, and the personal commitment of safety and health professionals both in industry and government, have made the U.S. mining industry the safest in the world. Since the Sago disaster, these facts have never been adequately explained to the public, just like in 1969 and 1977. Lack of communication has fed the false image of an industry that is not regulated and opened the door for career, anti-industry critics (both inside and outside MSHA) to seek enforcement increases and new regulatory mandates. While these critics may be well meaning and their cause is emotionally appealing, their rhetoric neglects to mention the loss of thousands of mining jobs since MSHA was created and the massive loss of mines and even entire industry sectors to foreign production. Increasing fines In the years following the 1977 Mine Act, MSHA increased enforcement and labeled 98 percent of all violations it issued as “significant and substantial” (S&S) hazards. It also increased penalties, “unwarrantable” enforcement actions, and “special investigations” against management personnel. With four mandated “complete” inspections per year at underground mines, many of them began to receive multiple inspectors per day, and hundreds of violations per year, even while some were receiving the Sentinels of Safety Award, co-sponsored by MSHA itself. The violations issued went beyond hazards and included broken light bulbs, trash cans without lids, fire extinguishers with late inspections, and clean-up violations for soda cans in truck cabs or dirty washrooms. It took concerted legal actions to declare some of the MSHA post-1977 Mine Act abuses invalid. Citation contests and test cases restricted MSHA use of “S&S” and “unwarrantable,” and led to the creation of the “informal conference” to attempt to resolve improper citations (now largely ineffective) and the minimum penalty that MSHA plans to eliminate. Congressional hearings and litigation in the 1980s resulted in restraining the growing agency “zeal” for power and unfocused inspections and enforcement. If MSHA is increasing the pendulum swing towards aggressive enforcement again, even when it’s not warranted, it will be necessary to again aggressively challenge MSHA, albeit while fully cooperating with the agency. It also will be necessary to re-educate foremen, supervisors, and mine managers on how to deal with inspections and investigations to reduce their risks. Meaningful reform Most perplexing is the MINER Act provision for notification to MSHA within 15 minutes of a defined “accident,” and the imposition of large penalties for failure to do so. Is the current requirement for “immediate” notification inadequate? If personnel are engaged in heroic rescue efforts, should they stop to call MSHA? The time spent on this provision was not worthy of our Congressmen and Senators. Now that it’s the law, however, the industry and MSHA will have to find a rational implementation method to avoid creating another post-accident citation, unrelated to the cause or the protection of miners; something we became far too familiar with following the 1977 Mine Act. Perhaps some day Congress will recognize that real MSHA reform is needed to focus the agency on real risks. Perhaps the debate will shift to improving high incidence rate mines, and reducing high-risk violations. Perhaps MSHA managers will receive bonuses for incidence-rate and citation-rate reductions at the mines in their regions, and performance rating dings for failures to improve. Without real incentives and disincentives, throwing laws and federal money at mine safety will repeat the unnecessary enforcement risks, the loss of mines and employment that followed the 1977 Mine Act, and place mine operators and their personnel at increased risks, without advancing safety. Beware; the new MSHA is here, at least for the foreseeable future.
When MSHA Goes Nuclear
It doesn’t take a lawyer to tell you that since the beginning of this year, the world has changed for mine operators. What started with the disasters at Sago and Aracoma has snowballed with each new fatality. The media and their various audiences were mostly unconcerned with the mining industry until now (with the notable exception of movies in which mine safety and mining practices provide a convenient, yet for us uncomfortable backdrop against which to set a courtroom drama or a rags-to-riches tale). The recent mining tragedies have prompted a flood of media stories that perpetuate the mythology that surrounds mining in the American mind. This being not only an election year but also a year of uncertain political fortunes, the newfound national awareness of mine safety issues has drawn Congressional attention, in the form of hearings and the new Mine Improvement and New Emergency Response (MINER) Act of 2006. Not surprisingly, much of Congress’s focus has been on finding someone to blame for Sago and the other tragedies. As Congress points the collective finger at the Mine Safety and Health Administration (MSHA) and accuses the agency of inattention to mine safety, MSHA, in turn, appears to be getting more aggressive in its enforcement, as though to assure the country that it really does protect its miners. Based on what we hear from our clients, it appears that the new attitude toward enforcement is exhibiting itself in a number of ways. We have had a number of clients report that they have been contacted by MSHA for payment of old penalties, occasionally with threats that the penalties will be turned over to other federal agencies for collection actions. Happily, in virtually all of the cases we have looked at to date, it has been MSHA’s record-keeping, not the operator, that was mistaken. (Before you get too complacent about old fines, however, keep in mind that under the new MINER Act, the agency may have the authority to shut down a mine altogether for non-payment of civil penalties.) We have also seen a marked upward trend in citations and orders being written to our clients — more high negligence citations, more citations written alleging significant and substantial (S&S) violations, and more allegations that an operator has unwarrantably failed to comply with a mandatory standard. Civil penalty proposals have risen dramatically and will undoubtedly rise still further in light of the penalties authorized in the new legislation. One very disturbing trend is MSHA’s new willingness to make use of what we call “the Nuclear Option,” Section 104(e), the Pattern of Violations (POV) provision of the Mine Act, 30 U.S.C. §?814(e). Although the ability to find that an operator has a POV has been available to MSHA since the 1977 Act was passed, between 1977 and 2006, to our knowledge the agency has never used this very powerful tool to enforce mine safety. In the months since Sago, we have seen several attempts by MSHA to cite operators under the POV provision, and there is every reason to believe more such attempts will be coming. Under the POV scheme, MSHA must provide notice to an operator that it has identified it as having a Pattern of Violations. Under the regulations for POVs (which are found at 30 C.F.R. Part 104), the operator has a “reasonable opportunity,” which the agency defines as “not to exceed 20 days from the date of notification,” to persuade MSHA that a pattern of violations does not exist. If MSHA remains unconvinced, it will cite the operator for a POV. That’s when things simply get ugly. Once the mine is found to have a POV, if an MSHA inspector finds an S&S violation during any mine inspection in the next 90 days, the inspector can shut down the “area affected by such violation” until the violation is abated. Once that happens, MSHA can issue a withdrawal order each and every time the mine receives an S&S citation or order until the mine goes through an entire inspection without a single S&S violation. What “the affected area” means is not spelled out in the Act, and it only compounds the problem. If you are talking about something that is relatively discrete, like the working face in a quarry where there are other possible worksites, a withdrawal order might not be disastrous. Where the mining operation is more process-driven, or where the inspector determines that the “affected area” is a crucial part of the operation, like haulage, a withdrawal order can effectively shut down the mine. This means that if you get a letter from MSHA saying that you are being considered for a POV citation, you need to take it very seriously. Although not every MSHA action requires the assistance of counsel, if you receive a POV letter, you would be well-advised to make at least an initial phone call to your friendly mine safety lawyer, at least for some initial help in planning a response strategy. You can, and, in most cases, should submit a written request for an informal conference with the district manager at which to present the arguments in your favor. There are a number of ways to defend against a potential POV finding. In most cases, it makes sense to adopt a combination approach. First, take a good look at the basic data that MSHA used. The agency will provide you with a list of the citations and orders on which it based its initial determination that you should be considered an operator with a POV. You should look very closely at that list. In our experience, the agency frequently fails to exclude citations that were issued to contractors on-site, rather than to the operator under consideration. Those should be taken out of the mix, because they do not fairly reflect on your practices as a production-operator. Moreover, MSHA is supposed to consider only final orders, which means that if you have contested any of the penalties associated with the citations and orders on MSHA’s list, those should be excluded as well. Only S&S violations can be included in MSHA’s consideration, so you should look at the list carefully, to make sure that each citation truly was S&S, and that none was subsequently modified, whether by settlement or otherwise. Because the POV provision was intended to crack down only on persistent violators (what the Act’s legislative history referred to as the “few [operators] who repeatedly thumbed their noses at the law,”) you should also look at how your operation stacks up compared to others in your industry. Do you have a lower accident and injury rate than your peers? That would be a good thing to point out to MSHA. What about your rate of violations per inspector day (VPID)? Anything that you can point out that will show that you are roughly comparable to others in your industry will make it harder for MSHA to insist with any credibility that you have a pattern of violations. Depending on the labor situation at your operation, you may also consider enlisting the support of your miners’ representatives in talking with the government because after all, a shutdown of any significance could also have a major effect on your workforce. If the agency still thinks you are appropriate for a POV, you will still have an opportunity to fend off the government by creating a program designed to avoid additional S&S violations at your operation. Under the regulations, if you propose such a program, the district manager can give you up to 90 days to show that the program has been effective in reducing your S&S violations. Again, your safety committee could be a significant asset to this effort, both because of the positive input you receive when devising the plan, but also because the district manager is specifically authorized to review any such program with the miners’ representatives on-site. As far as we know, MSHA has never actually used the POV provision of the Mine Act to enforce safety at operations under its jurisdiction. There is no question, however, that the trend to do so is underway. The consequences of a POV finding are considerable and in many circumstances can be disastrous. Getting a POV notice does not necessarily spell impending doom for your operation, but learning that your operation is under POV scrutiny unquestionably requires an immediate, meticulous, and in many cases, aggressive response.
Are You Ready For MINER's Impact?
As I wrote in this space just a couple months ago in the tragic aftermath of Sago, it did not take long for the legislative winds of change to kick up in hurricane type force. The hurricane has landed, and its name is “MINER.” In June, President Bush signed into law the Mine Improvement and New Emergency Response Act of 2006, also known as the MINER Act, which significantly amends the Federal Mine Safety and Health Act of 1977 (the Act). While much of the new law is tailored toward operators of underground coal mines, the amendments are intended to increase the level of safety for all in the mining industry and will undoubtedly have a significant impact on operators of all mines. As the name suggests, the new legislation is geared at increasing safety and improving emergency response. To this end, the MINER Act now requires all operators to notify authorities within 15 minutes of an accident and dramatically increases fines and penalties for those who commit safety violations. Additionally, the MINER Act requires “each underground coal mine operator” to implement a detailed accident response plan, requiring such operators to install wireless, two-way communication equipment and to equip miners with tracking devices, as well as requiring the implementation of numerous other safety features. The MINER Act’s emphasis on improving the overall emergency response time to accidents is highlighted by amendments to Section 103(j) of the Act. This section is amended by requiring operators of any mine to notify the Secretary of an accident “within 15 minutes of the time at which the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred.” A wide range of fines could be levied against those who fail to comply with this new notice requirement. Indeed, an operator who fails to provide such timely notification “shall be assessed a civil penalty between $5,000 and $60,000.” It is important to remember that although the MINER Act requires 15-minute notification for only three types of accidents, the Mine Safety and Health Administration’s Emergency Temporary Standard requires 15-minute reporting for all 12 types of “accidents” listed in 30 C.F.R. § 50.2. The primary impact of the MINER Act, especially for small operators, comes from its amendments to Section 110 of the current statute. The new amendments provide for increased fines for those who commit criminal violations, create new minimums for civil penalties, establish a new category of penalties for violations deemed to be “flagrant,” and allow for mine closures where operators fail to comply with civil penalty assessments. Indeed, fines of up to $250,000 and/or imprisonment of up to a year may be levied upon those convicted of willfully violating a mandatory health or safety standard or knowingly violating or failing or refusing to comply with any order issued under Sections 104 and 107. Subsequent convictions may be punishable by a fine of up to $500,000 and/or imprisonment of up to five years. The MINER Act also establishes a $2,000 minimum penalty for citations or orders issued under Section 104(d)(1) and a $4,000 minimum penalty for citations or orders issued under Section 104(d)(2). Moreover, operators who commit “flagrant” violations may be assessed a civil penalty of up to $220,000. Flagrant violations are defined 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.” Additionally, operators who refuse to pay a civil penalty may now be subject to a mine closure. The MINER Act requires “each underground coal mine operator” to develop and adopt a written accident response plan within 60 days after the MINER Act is enacted. Such a plan is subject to approval by the Secretary and must contain a number of mandatory provisions, such as requiring operators to do the following:
Although these requirements are only applicable to coal mines, they may well signal the direction of future rulemaking that affects the industry as a whole. The good news is the MINER Act’s establishment of a new “Office of Mine Safety and Health” located within the National Institute for Occupational Safety and Health. The office’s purpose will be to “enhance the development of new mine safety technology and technological applications and to expedite the commercial availability and implementation of such technology in mining environments.” While the MINER Act’s full impact may not be felt until MSHA finishes its rulemaking regarding the new penalty structure, it is certain that penalties will be significantly higher under the new Act. Additional rulemaking will also be needed to reconcile the changes mandated in the MINER Act with MSHA’s Emergency Temporary Standard. Nonetheless, we all can be assured that the rules have changed, and we will all have to adapt accordingly, as the changes could have a devastating impact on the unprepared.
Secret Agent Man
Considering which miners are agents under the Mine Act may not be as exciting as watching a James Bond flick, but this determination can have some very real consequences for operators. Thanks to a recent Ninth Circuit decision, the determination may have just gotten a little easier. Negligent actions of an operator’s agent, actions arguably outside of the operator’s control, may be held against the operator in the assessment of civil penalties and the determination of unwarrantable failure. No matter how good the operator’s training programs, safety measures, or intentions, the negligence of an agent can drastically affect a citation’s outcome. On the other hand, the negligence of a “rank-and-file” miner is generally not imputable to operators. An operator should know who its agents are. Section 3(e) of the Mine Act defines an agent as “any person charged with responsibility for the operation of all or a part of a coal or other mine or the supervision of the miners in a coal or other mine.” Not surprisingly, this definition provides little guidance in determining whether a miner is an agent of the operator. The determination requires a case-by-case analysis, but guidance has emerged from case law. A miner’s function, not his job title, is scrutinized. If a miner’s responsibilities include tasks typically assigned to management, the miner is likely an agent of the operator. Similarly, if the miner’s responsibilities are crucial to the operation of the mine, he may be the operator’s agent. Many decisions by the Commission have pondered the question of miner as agent, (e.g., Martin Marietta Aggregates, 22 FMSHRC 633 (2000)), but the question rarely makes it beyond the Commission level. In a recent unpublished decision, the U.S. Court of Appeals for the Ninth Circuit vacated fines imposed for two citations against the Original Sixteen to One Mine Inc., a high-grade gold mine in Alleghany, Calif. (Original Sixteen to One Mine Inc. v. Federal Mine Safety and Health Administration, Ninth Circuit, No 04-71301 (March 30, 2006)). The decision embodied an almost six-year struggle for the operator and provides significant guidance regarding miner/operator agency relationships. In November 2000, Mark Fussell, a lead miner at the Original Sixteen, was fatally injured. Although there were no witnesses to Fussell’s accident, no one disputed that his conduct was negligent. Original Sixteen contested two citations resulting from Fussell’s death. Following an evidentiary hearing, the Administrative Law Judge (ALJ) determined that Fussell was an agent of Original Sixteen and that his negligence should be imputed to the operator in assessing the civil penalty. The ALJ based his decision on the following: (1) as lead miner, Fussell was ultimately responsible for the safety and operations of his work group; (2) Fussell had responsibility for safety and compliance with the law; and (3) Fussell was responsible for signing daily “safety sheets.” Original Sixteen filed a petition for discretionary review with the Commission, but received no relief. Original Sixteen appealed its case to the Ninth Circuit Court of Appeals. On appeal, Original Sixteen argued the ALJ’s agency determination regarding Fussell was wrong. The Court of Appeals agreed. In reaching its decision, the Court considered that all miners at Original Sixteen on the date of Fussell’s death were classified as lead miners, and Fussell had the same duties and responsibilities as the rest of the lead miners. Additionally, the fact that the most senior (by hiring date) lead miner is responsible for junior lead miners does not warrant a finding that the miner is an agent of the operator. Quoting an earlier Commission decision, the Court acknowledged the sweeping implications that a finding to the contrary could have for rank-and-file miners — “every time an experienced miner tells a less-experienced miner ‘what to do’ on the job, the experienced miner would be acting as the operator’s agent.” The Court found the nature of Fussell’s duties was not the type usually delegated to management and that he was not exercising managerial responsibility at the time of his negligence. Finally, the Court considered the lack of evidence establishing that Fussell had authority to hire and fire, to assign equipment to, or to discipline employees. The fact that Fussell could assign tasks to other miners he was working with was insufficient to establish he was an agent of Original Sixteen, and the penalties were therefore vacated. Any determination as to whether a miner is an agent will be a factual analysis unique to the particular operator, but the holding in Original Sixteen is instructive. Every operator should be aware of the implication of assigning managerial or mine critical tasks to employees. Again, every action of an operator’s agent can be imputed to the operator, so while an onscreen secret agent may be exciting, one at the mine site is a high-stakes gamble for an operator. The Race to Report MSHA recently changed Part 50’s accident notification requirement, so producers should review their accident and emergency procedures. In many cases, compliance with the new reporting requirements will be extremely difficult. On March 9, 2006, the Mine Safety and Health Administration published an Emergency Temporary Standard (ETS) that modifies several standards and regulations. It imposes new equipment, training, and accident notification requirements on mine operators. MSHA is now holding public hearings and accepting public comments on the ETS. MSHA published the ETS in response to the Sago Mine Accident, right? Yes. So, isn’t the ETS aimed at coal mines and coal mine operators? Not entirely. It is a response to Sago, and it is primarily aimed at coal mines and coal mine operators. However, MSHA has also used the ETS to change the accident reporting requirements in 30 C.F.R. Part 50, and these new requirements apply across the board to all mine operators, including aggregates producers. More specifically, the ETS amends 30 C.F.R. § 50.10 to require all mine operators to immediately notify MSHA after any accident, and immediately now means “at once, without delay, and within 15 minutes.” An accident is any one of the 12 events described in 30 C.F.R. § 50.2, including fatalities, injuries that have a reasonable potential to cause death, unplanned ignitions, and unplanned mine fires that last longer than 30 minutes. Although “the 15-minute time period begins when the mine operator determines that an accident has occurred,” MSHA states in the ETS preamble that, “the operator must act right away as circumstances permit and such action must take place within 15 minutes.” Part 50 has always required
mine operators to immediately notify MSHA when an accident
happens. MSHA frequently takes a hard line when evaluating the
timeliness of an operator’s notice. MSHA has actually cited an
operator who reported an accident less than 25 minutes after the
operator determined that an accident had actually occurred. The
reasons for any delay — regardless of length — simply do not
seem to matter to MSHA. Similarly, the fact that such a short
delay does not affect MSHA’s ability to conduct an accident
investigation also does not seem to matter a great deal to MSHA.
In other words, MSHA believes that immediately literally means immediately, and the Federal Mine Safety and Health Review Commission (Commission) basically agrees with MSHA. However, the Commission has also held that any delay must be evaluated on a case-by-case basis, taking the nature of the accident and other factors into account. This approach is slightly more reasonable than the approach that MSHA takes. According to the Commission, a 5-, 10-, or even a 30-minute delay might be justified under the right circumstances. Under the ETS, a 1-minute delay might violate Part 50 and any delay in excess of 15 minutes always violates Part 50. In other words, MSHA used the ETS to scrap the Commission’s slightly more reasonable approach. A list of “Frequently Asked Questions” on the ETS that MSHA recently published illustrates this point quite well: Q. Have I complied with the immediate accident notification provision as long as I contact MSHA just before the 15 minutes is up? A. The “within 15 minutes” timeframe is a maximum allowable response that can only be taken if necessary. It does not stand alone. You must respond in the first instance “at once without delay.” For example, if you knew that an accident occurred and then sat by the phone up to the 15 minutes before getting around to contacting MSHA, you would not be acting “at once without delay” and would be in violation. In many cases, compliance with these new reporting requirements will be extremely difficult. Mine operators should review their accident and emergency response procedures to streamline reporting. You can start by getting the answers to some simple questions: At your mine, who are the people responsible for making the call to MSHA? Do they know how and when to call MSHA? What number will they use? Do they know what constitutes an accident under 30 C.F.R. § 50.2? Are those people always available at the mine? Are they always close to a phone? Do they have to wait for approval to call MSHA? MSHA has scheduled hearings and will be accepting public comments on the ETS. MSHA’s use of the ETS to make such broad, sweeping changes to Part 50 is certainly questionable, and comments will likely reflect this fact. Of course, MSHA may choose to amend the ETS to include additional requirements or to clarify existing ones, but, in the meantime, mine operators must comply with the ETS as it is written.
With the Sago tragedy still so freshly engrained in our hearts and minds and with a community still grappling with the reality of it all, the legislative winds of change have started blowing — and are blowing in hurricane type force no less. Sen. Arlen Specter (R-Pa.) is proposing broad, sweeping, and profound changes to the Federal Mine Safety and Health Act of 1977 (“the Act”). Bill S. 2308, which was introduced in February, focuses on increasing safety while sharply raising penalties for those who violate the Act. If enacted, Senator Specter’s bill, in addition to establishing new safety standards, would create new minimum penalties and fines, drastically increase the maximum penalty amounts, establish new lines of communications, and restructure the procedures for accident investigations. The most significant and drastic changes are directed towards Section 110 of the Act. Section 110 would be amended to create a new category of violations and new maximum penalties. Under the proposed amendments, operators could be subject to fines of up to $500,000 for “flagrant” violations. “Flagrant” violations would occur where there is a “reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health and safety standard that substantially and proximately caused, or reasonably could be expected to cause death or serious bodily injury.” Additional penalty increases under Section 110 would include raising the maximum fine under Section 110(b) for failing to correct a violation for which a citation has been issued from $5,000 to $55,000. Furthermore, amendments to Section 110(d) would impose criminal penalties of up to $250,000 on an operator who “knowingly exposes miners to situations likely to cause death or serious bodily injury” or otherwise violates any of the existing provisions listed under this section. Moreover, maximum fines for subsequent violations, after the first conviction under this section, could be increased from $50,000 to $500,000. Maximum fines would also be dramatically increased under Section 110(e) for providing unauthorized advance notice of inspections from $1,000 to $20,000. Maximum fines under Section 110(f) for knowingly making a false statement, representation, or certification could be raised tenfold — raising the maximum penalty from $10,000 to a proposed $100,000. Sen. Specter’s bill also proposes to impose a new civil penalty of up to $100,000 on any operator who “fails to inform the Secretary of a disaster relating to a coal or other mine within the 15-minute period following the occurrence of the disaster.” In addition to establishing a new ceiling of fines for violations of the Act, the proposed amendments would also create new minimums for fines or penalties. For example, a fine or civil penalty under Section 110 issued for a violation of a mandatory health or safety standard or other provision of the Act that “could cause serious illness or injury” would have to be issued in an amount of at least $10,000. Additionally, an operator who “habitually violates” a mandatory health or safety standard, or other provision, “that could significantly and substantially contribute to a safety or health hazard” would be subject to a fine or civil penalty in an amount not less than $20,000. While seeking to raise the fines for those who violate the Act, the bill also seeks to establish increased safety and rescue measures by creating new mandatory health and safety standards. One of the new standards would require all operators to “strategically locate” at least one oxygen station within each area of a mine where miners are working. The station must be capable of providing the average number of miners expected to be working in such areas with at least a four-day supply of oxygen. The bill’s emphasis on safety is further underscored by the creation of new standards directed towards establishing an improved communications system and instituting a wireless way of tracking individual miners. Under the proposed amendments, each operator would be required to make available to each miner a wireless tracking device that would enable rescuers to locate the miner in the event of an emergency. Additionally, operators would be required to ensure that each miner carry a wireless text messaging or other wireless communication device that would enable rescuers or mine operators to communicate with the miner. The miners would be required to receive initial training in the usage of wireless communications and be required to attend a refresher course at least once each calendar year. The bill would also require operators to keep tighter control over rescue communications. Such communications are to be transmitted only to the individuals participating in the rescue operation. Rescue teams for each mine would also be required to participate in a surprise, unannounced, emergency rescue drill at least twice a year. The proposed legislation isn’t just directed towards operators. In fact, the Secretary would be required to establish a central communication emergency call center that would be staffed 24 hours a day, seven days a week by a live person — no automation. Additionally, the Secretary would be required to promulgate regulations establishing rules for conducting an investigation of any accident relating to health or safety and for holding hearings relating to such investigations. Within 30 days of completing such an investigation or a review regarding the Administration’s response to such an accident, the Secretary would be required to submit a report regarding the investigation or review to the Committee on Appropriations and the Committee on Health, Education, Labor and Pensions of the Senate and to the Committee on Appropriations and the Committee on Education and the Workforce of the House of Representatives. Moreover, the Secretary would be required to review an operator’s ventilation system, methane and dust control plan, and the roof control plan at least once every three months. The Secretary would also be required to contact an operator within 24 hours of the operator receiving a citation under Section 104(a) to ensure that the operator is taking appropriate measures to abate the violation in the time specified by the violation. Whether or not Sen. Specter’s proposed changes will be enacted or whether additional legislation may follow remains to be seen. We all can be assured, however, that the winds of change are coming, and are coming swiftly.
We are all in mourning. Our community doesn’t go through an experience like the explosion at Sago without experiencing a horrible, wrenching loss. Nor can we go through such an experience without understanding the crushing disappointment of those in the industry, including the folks at Sago and ICG, who have worked so hard to take the mining industry from its former status as the ‘most dangerous job’ in the country only a few short years ago, to our record-low accident, injury, and fatality rates throughout the last few years. Let us not forget that during this time when the mines were becoming safer and safer, productivity increased as well. But we cannot forget, even as we mourn, that the legislative process proceeds and the public debate about mine safety becomes more and more shrill. I, like everyone else in the mining community, am saddened if even one miner dies. However, that does not allow people who have never had the honor of being a part of our industry to second guess, recriminate, and accuse. Yet, that is exactly what is going on and, I fear, where the public debate is headed. The investigation of Sago is continuing. We must allow it to run its course without allowing it to be used as a soapbox for any particular point of view. The chips can and must fall where they may. Only then, deliberately taking the objective information gleaned from careful examination, can we even begin to examine whether laws or regulations need to be changed, and if so, how. Only then can we start to examine the technology that is available and the technology that should be available to try to achieve the maximum safety for the men and women who work in our mines. While this is all going on, we need to remember that we have nothing to be ashamed of. The industry has made tremendous strides during the last several years. We need to keep our heads up and remain proud of all that we have accomplished. The vilification coming from the media — the insinuation that lax punishment, or undue influence by the industry brought about the tragedy at Sago or the one that followed so closely after it at Aracoma — needs to be quashed before it drowns out the voices of those who would suggest the kinds of effective changes that might actually bring about meaningful improvements in mine safety. We have to work together; industry, labor, and government, to achieve that goal or to be doomed to waking up in another 10 or 15 years to find that all our hopes of survival have been dashed. We all have a stake in the future of the American mining industry. In many ways, it built this country. And, in many ways, we would not be where we are today — a leader of the world economy — without it. I do not say any of this lightly. I was there at Sunshine, when we rescued two of the 93 miners trapped by fire. I remember how the rescue raised people’s hopes and how the discovery that there were no other survivors destroyed them. I was there at Scotia, when we rushed into the rescue, only to have the mine explode again, killing 13 more and compounding the tragedy. The memory of the rescuers who rushed in at Jim Walters at the expense of their own lives is still fresh with us. And yet, the question remains, did we get there quickly enough? Should we have gone faster? Today, there are no men waiting for rescue. There is no longer any need to rush, lest, like Sunshine, Scotia, and Jim Walters, the tragedy is only compounded. We must not let emotion get the best of the debate. We must allow the best minds in mining to gather the information they need to come up with the best solutions for improving safety that there can be. We owe those brave miners no less. Mother Jones said, “Pray for the dead and fight like hell for the living.” I’m with her.
If you are a regular reader of my articles, you know that I am a fan of checklists. That is probably because I have found that getting my arms around a subject matter is easier when I learn the basic parameters within which I need to evaluate issues and take action. This month’s topic is best explained in this format. What do you need to know and what must you do when a disaster or crisis strikes at your facility? If you’re thinking about disaster planning or crisis management for the first time after a disaster happens, you are already too late. The purpose of this article is to invite you to have this discussion well in advance. Having a thoughtful and well-communicated crisis management plan will help to insulate you from unnecessary mistakes and liability when the heat is on. Here are some items for you to consider. 1. Make sure that you keep an updated list of all emergency notifications required under all applicable state and federal laws as well as a current contact name and telephone number for each agency. Agree in advance who will make these calls. 2. Isolate and secure the scene of the accident/disaster immediately. Deny unauthorized access and prevent removal/disturbance of any physical evidence. 3. Understand the scope of and strictly comply with any government orders related to site access, including the Mine Safety and Health Administration 103(k) orders. If necessary, negotiate access to the extent necessary to preserve evidence. 4. Negotiate and implement a protocol for the handling, removal, and testing of any physical evidence relevant to the accident. Establish a written chain of custody for all evidence and arrange for secure storage of any evidence removed from the scene. This is key to avoiding an argument in any future legal proceeding that you have destroyed or altered evidence. This could expose you to sanctions under a legal doctrine known as spoliation of evidence. 5. Establish one point of contact within your organization for media communications. Avoid any appearance that the company is speaking with many voices and conflicting messages. In press statements, focus on integrity; safety and security; investigation to prevent future occurrence; and the three C’s (see below). At the same time, avoid “no comment” responses, discussion on fault, speculation, and admissions. 6. Communicate with affected families regularly and provide accurate information. However, be cautious because such statements could appear in media coverage of the disaster. What you tell families should not conflict with your statements to the media. 7. In all communications, remember the three C’s: compassion for injured employees and their families; cooperation with regulators and investigators; and a commitment to safety. 8. Make legal counsel available to employees. This is particularly critical for management employees who could be exposed to personal liability. Management should make a knowledgeable and informed decision to be interviewed by investigators. 9. Make sure employees are trained regarding their rights during an investigation. I encourage you to review the “Miner’s Bill of Rights” (see Rock Law, Aggregates Manager, November 2005). 10. Compile and organize relevant documents (see Document List). 11. Promptly notify insurers of the incident and provide site access to their adjusters/investigators. 12. Regularly brief your workforce regarding the status of the investigation. Be cautious about statements that could be construed as admissions of liability. However, your employees must understand that you value them and that their safety is your top priority. Again, stress the three C’s. 13. Accompany accident investigators throughout the investigation. Ask questions regarding why something is being done. Take careful notes of any comments made regarding alleged regulatory violations. Mirror actions of investigators, i.e., take photographs, measurements, samples, etc. side-by-side. 14. Ensure in advance (and in writing) that any company trade secrets or proprietary information shared with investigators will be protected. 15. Seek the involvement from day one of a qualified outside consultant with expertise in the subject matter related to the incident. Preferably have this person retained by legal counsel to protect potential attorney work product confidentiality. 16. Always tell the truth. Although this goes without saying, it bears repeating and emphasis. Misleading investigators is a very serious offense. The job of legal counsel is to protect your interests and defend your rights. However, counsel can only be effective if you, as operators, take steps to protect yourselves. If your company does not have a crisis management plan, I encourage you to begin preparing one. If you haven’t reviewed it recently, it might be time to take it off the shelf. Careful planning will take some anxiety out of an already stressful process. Document List Useful response and educational documents include the following:
Produce documents to investigators after careful consideration and review by counsel.
Drug and Alcohol Programs by John Austin, Jr., Henry Chajet, and Mark Savit Employers are always on the lookout for ways to improve safety and increase efficiency. One method that employers increasingly find to meet those goals is an effective drug and alcohol policy. Drug and alcohol abuse is an increasing problem for employers. Impaired workers endanger themselves and those around them. They are inefficient and cause others around them to be less efficient. There is currently a hodge-podge of laws and regulations relating to drug and alcohol programs. In some states, employers can have a zero-tolerance program, where dismissal for the first offense is allowed. In others, the program must include the opportunity for the employee to participate in a rehabilitation program and return to work following rehabilitation. In some of those states, the employer is required to pay for the rehabilitation program, while in others the employee is required to pay. In many states, there are very strict rules about personal privacy that must be taken into consideration when developing a program. In some instances, these privacy laws limit the type of testing, the number of persons who can have information about the results, and even the actions that can be taken based on the results. In increasing numbers, employers are recognizing the benefit of instituting drug and alcohol programs to minimize the risk to their employees and to limit their liability. Even after taking into account the legal requirements of the state and federal rules, a wide variety of programs can be chosen by the employer. The simplest programs contain merely pre-employment screening and education. This alone has the benefit of excluding those applicants who are high-risk drug abusers. Yet, there is a downside because it has been observed that pre-screening testing has the effect of decreasing the pool of available employees in areas where the labor pool is already small. However, the risk presented by an employee who abuses drugs is too high to justify hiring someone just to fill a position. More comprehensive programs include pre- and post-employment testing, random testing, incident-related testing, rehabilitation programs, education, and training, with additional training for supervisors. The level of testing can range from simple tests for a few substances to broad sampling for a large number of drugs. Many issues can be made less difficult by addressing them at the beginning of the process. Working with experts in personnel and privacy matters, the employer can add a layer of protection by developing employment applications and employee agreements that are signed by the employees at the time their employment commences. Often times, an employment agreement will validate procedures that might not otherwise be available at the time of an incident. For example, an employee may have the right to decline to take a drug test following an incident, unless his employment agreement specifies that incident-related drug testing is a condition of employment. While there may be disagreement on some elements of a plan, employers and unions should both have a strong interest in not having impaired workers on the job and should work together to develop a workable plan. Yet, while some unionized operations have successfully developed and implemented a zero-tolerance plan that results in termination of the employee upon the first violation, others have met with resistance. At the present time, the Mine Safety and Health Administration and the Occupational Health and Safety Administration have no regulatory requirement for employers to develop and implement drug and alcohol programs. The MSHA metal/nonmetal regulation, 30 CFR 56/57.20001, states: “Intoxicating beverages and narcotics shall not be permitted or used in or around mines. Persons under the influence of alcohol or narcotics shall not be permitted on the job.” OSHA has a few regulations that pertain to use of explosives and relate specifically to use of narcotics. For example, 29 CFR §1926.900 states: “No person shall be allowed to handle or use explosives while under the influence of intoxicating liquors, narcotics, or other dangerous drugs.” Unlike smoking in dangerous places, there is no regulation that penalizes the individual who is on the job while intoxicated or under the influence of drugs. MSHA published an Advanced Notice of Proposed Rulemaking in which comments were sought on the problems of drug and alcohol abuse in the nation’s mines and mineral processing facilities. Public hearings were held and a number of comments were submitted. Transcripts and comments can be found on the MSHA Web site at www.msha.gov/currentcomments.asp . Many who submitted comments, feared regulations that would not be adaptable to individual company circumstances. They urged MSHA not to require employers to develop and implement drug and alcohol programs, but to provide technical support and guidance for those who wish to do so. They urged that those who develop drug and alcohol programs should be protected from liability. Many believe that if MSHA institutes any requirement for drug and alcohol programs, it should pre-empt the state and local laws, so that an employer has only one set of requirements. We suggest that employees should be required to sign drug- and alcohol-free statements annually, that these be considered to be required federal records, similar to training records, subjecting employees who provide false statements to federal criminal penalties and termination for a failure to provide truthful documents required by law. Such a regulatory mandate would increase record keeping burdens, but we believe the trade-off is worthwhile to gain the support of the federal regulatory system for justified employment discipline, including termination. We encourage employers to improve their programs or to develop new ones to reduce the hazards created by drug and alcohol abusers. And, we encourage MSHA and OSHA to exercise their authority in the least intrusive manner to help end this threat to workplace safety.
Limiting Your Liability One of the Mine Act’s fiercest enforcement mechanisms is its imposition of liability against individuals, as well as corporate operators. Section 110(c) of the Act provides that a corporate operator’s agent, who knowingly authorizes, orders, or carries out the operator’s violation of a mandatory safety or health standard, shall be subject to an individual civil penalty. To “knowingly authorize” a violation means to know or have reason to know of a violative condition. To prove liability against an agent of an operator under Section 110(c), the Secretary of Labor need only prove that the individual agent knowingly acted. It is not necessary to show that the individual knew that a particular action violated the law, because the Act presumes that all operators and their agents know the Act as well as MSHA regulations. Acting knowingly means that the individual is “in a position to protect employee safety and health” and failed “to act on the basis of information that gives knowledge or reason to know of the existence of a violative condition.” Thus, Section 110(c) requires aggravated conduct constituting more than ordinary negligence. Although the Act defines agent as “any person charged with responsibility for the operation of all or a part of a…mine or the supervision of the miners in a…mine…,” determining whether a particular individual qualifies as an agent under Section 110(c) can prove challenging. Generally, directors, officers, and management-level employees of corporate operators are considered agents for purposes of the Act. However, the distinction is less clear where a non-management, non-miner individual is alleged to have knowingly violated a mandatory safety or health standard, especially in the case of a smaller corporate operator, where the individual may be a particular department’s sole employee. For example, rather that holding the title of manager or miner, the individual may be a called coordinator. In other cases, the individual may be an hourly employee acting as a leadman or temporary leadman. Occasionally, MSHA will propose to assess 110(c) liability against seemingly non-management mine personnel. Some questions to consider in deciding whether to contest 110(c) liability in such a situation include the following:
Answering yes to one or more of these questions generally will weigh in favor of the individual being an agent of the operator. No answers will be helpful in contesting 110(c) liability. In Secretary of Labor v. Martin Marietta Aggregates, the Federal Mine Safety and Health Commission held that the leadman for a crew at a loadout area of a stone quarry was not an agent of the operator, given his “very limited responsibilities to assign work and his close supervision by management” [22 FMSHRC 633 (May 31, 2000)]. Although, the leadman exercised “a certain degree of control over the loadout area” and his crew, his control was “tightly circumscribed.” The leadman had no “authority to hire, fire, discipline, or evaluate” other miners and was paid by the hour. These determinations are fact intensive and turn on the individual’s specific conduct at issue. The gravity of the agent/non-agent status becomes evident when one considers that Section 110(c) provides for criminal fines of up to $60,000 and prison sentences of up to one year, in the case of a first offense, against an individual who “knowingly authorized, ordered, or carried out” a violation of the Mine Act. If, however, the violation results in a fatality, MSHA may increase the criminal fine to up to $250,000. Where no fatality occurs, MSHA may increase the criminal fine to a maximum of $100,000. Other substantial enforcement provisions are embodied in Section 110, including Section 110(d)’s imposition of prison sentences of up to one year against any operator who either willfully violates any health or safety standard or knowingly violates a withdrawal order issued under Sections 104 or 107, although certain limited exceptions apply (e.g., any person whose presence in such area is necessary, in the judgment of the operator or an authorized representative of the Secretary of Labor, to eliminate the condition described in the order; a public official whose official duties require his or her presence in the area, etc.). Where the operator is an organization, rather than an individual, this fine may be increased to $500,000 for fatal, and $200,000 for non-fatal, violations. Finally, under Section 110(f), any person, agent or non-agent, who “knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to the Mine Act may be subject to fines and prison sentences for up to five years. A violation under Section 110(f) is considered a felony and the associated criminal fine may be increased to $250,000. The Act’s individual civil and criminal liability enforcement mechanisms reach far and wide. Therefore, every miner should understand how Section 110 operates, and when appropriate, should consider contesting an allegation of agent liability.
Reducing Risk, Part 2 There are many standard procedures that companies should implement for interactions with government officials. Some of the most important ones that we recommend include the following:
Question improper enforcement Management personnel should consider addressing the following items regarding possible violations, first among themselves, and then, if helpful, in their discussions with government:
Every enforcement action creates expenses or other consequences that may cost you money or personal freedom down the road. Those consequences virtually never affect anyone more than they affect you and your business. Among the most expensive and annoying of those consequences, quite frankly, is the time, effort, and expense devoted to lawyers and defense costs. While the measures that are outlined above may not keep an agency from initiating an enforcement action against you, we believe that they will make it easier to defend yourself if the need arises. Knowledge and training can be extraordinarily valuable tools for reducing liability and enforcement risks. There are no silver bullets that will enable you to completely avoid all kinds of liability. But throughout the years, we have found that, by following the advice in this two-part series, you obtain at least these four advantages: First, you will reduce the number of citations or other enforcement actions that you receive. Second, those actions that are taken will be less severe. Third, the chances that an action will result in criminal sanctions or big-ticket tort litigation will be drastically reduced. And, finally, there is a safety payoff on top of it all. The more you know about liability, the more likely you are to avoid problems before the inspector finds them. Untrained personnel may pose a company’s greatest risk from the standpoint of both safety and liability. A modest investment in training your managers and informing personnel of these simple steps just may reap your greatest return.
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Cole
A. Wist is a partner at Patton Boggs Law firm. He
counsels clients in occupational/mine safety and health law,
including MSHA and OSHA inspections, counseling. Wist
can be reached at the firm's Denver office via phone at
(303) 894-6159 or via e-mail at
Willa
Perlmutter is a member of Patton Boggs’ Environment, Health
and Safety and Litigation practice groups and is based in
the firm’s Washington, D.C., office. She has more than 20
years of experience in litigation before federal, state, and
administrative courts, and now focuses her practice on
administrative litigation related to mine safety and
occupational safety issues. Perlmutter may be reached via
phone at 202-457-5223 or via e-mail at
Justin
M. Brown is an associate in the Denver office of Patton
Boggs LLP. He counsels clients on contractual, intellectual
property, and mine safety and health matters. Brown may be
reached via phone at 303-894-6156 or via e-mail at
Brian
Hendrix is an associate with Patton Boggs LLP’s Washington,
D.C. office. Hendrix may be reached via phone at
202-457-6435 or via e-mail at
Peter
S. Gould is an associate at Patton Boggs LLP’s Denver,
Colorado office. He advises clients on environmental,
health and safety administrative matters, as well as complex
litigation in federal and state courts, with a focus on
natural resources. He may be reached via phone at
(303) 894-6176 or via e-mail at
