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December 2007The Five Simple Truths
by Henry Chajet A condensed guide to surviving encounters with the ever-changing Mine Safety and Health Administration. The first simple truth needed to survive the new MSHA is to understand that inspectors are not your friends. Hopefully, you do not need a Washington, D.C., attorney to tell you that the Mine Safety and Health Administration (MSHA) is a dangerous agency. Coal mine disasters continue to prompt Congress and the unions to attack MSHA for a perceived lack of enforcement. The result is that MSHA is lashing out at employers, including non-coal mines, quarries, and cement facilities, increasing enforcement and penalties at a record pace. The risks have become massive. Housekeeping citations — spilled product — are being issued as “unwarrantable failure” high-negligence violations, while light bulbs without guards are being categorized as “significant and substantial” hazards likely to cause death. Maximum fines are up to $220,000 per flagrant violation, a new term created by Congress that MSHA defined as including repeat, unwarrantable failures. Accidents and injuries draw a particularly harsh enforcement as MSHA tries to prove its enforcement dedication to its critics (one recent tragic fatal accident resulted in more than 100 citations). Without an injury, simple, non-hazardous violations that one year ago may have been fined $60 to $300 are now penalized thousands of dollars. Worse yet, a new statistical calculation of a “pattern” of significant and substantial violations will cause endless closure orders at MSHA designated mines. The first simple truth needed to survive the new MSHA is to understand that inspectors are not your friends. It is not business as usual, and they are not at your facility to help you, regardless of past friendships, professional respect, your outstanding safety accomplishments, or their shared dedication to protecting the workforce. When something goes wrong, the stuff will hit the fan. Even routine product spills and technical violations will impose massive costs, risk of shut downs, and severe enforcement penalties. Yet, cooperation with MSHA (and any state or federal agency) is required to successfully endure inspections and investigations by these government agents that recently have begun describing their role as “law enforcement” officials. The second simple truth is that mine and quarry operators must know their rights and duties to stay out of trouble, and they must understand that the penalty for ignorance can be jail, significant monetary fines, and MSHA closure orders. The most important mine operator rights and duties include the following:
The third simple truth that foremen, supervisors, and site managers must learn is that they can be fully cooperative without making damaging admissions. Management agents who are asked, “How long have you known about this?” (or any similar question aimed at establishing prior knowledge) should be taught that truthful, cooperative answers do not require admissions. In fact, they may include: “I don’t feel like talking about that,” and “We’ll make sure it gets fixed right away and doesn’t happen again.” The fourth simple truth is that, yes, MSHA might get suspicious if you refuse to answer an incriminating question, or refuse to be interviewed, but so what? Better to exercise your constitutional rights and have them suspicious than to give MSHA your own words to use against you and waive your rights without any warning (no Miranda warnings are required from MSHA nor given by inspectors). The fifth simple truth is that during an inspection or investigation, MSHA is only entitled to documents required by law or regulations. You will waive the company’s right to maintain confidential its documents by voluntarily giving them to MSHA, following an MSHA request. Or, you can refuse or delay, politely referring to the company’s document confidentiality policy, and asking for a written request for company review. When in doubt about whether a document is required by MSHA rules, you can delay your response or ask MSHA to show you the regulation, which requires the particular requested document (e.g. MSHA training records and MSHA work area inspection records are mandated by 30 CFR, but maintenance records are not). There are many more MSHA lessons worth learning that space does not permit covering in this article. These five, however, form the core of an MSHA risk-reduction strategy taught in our management seminars. Every management official under MSHA jurisdiction should adopt them. Knowledge and training is the key to surviving the new MSHA. October 2007The Supplemental MINER Act
by Mark Savit You have probably read about the recent proposals to amend the Miner Act, just a year after the passage of the Miner Act and just a month or so after the first penalties under the Mine Safety and Health Administration’s (MSHA’s) new penalty regulations have been issued. The proposed amendments (now called the “S-MINER Act”) would raise minimum penalties higher than the Miner Act, impose significant (and perhaps unconstitutional) impediments on the ability to contest those penalties, allow for the imposition of new standards without any opportunity for notice and comment, and generally impose a number of additional requirements where they will appear to have little, if any, relevance. The question we all have to ask ourselves is, “Why?” The answer has to be purely political. First of all, not enough time has passed to determine whether the changes wrought by the Miner Act and the new penalty regulations have had (or even appeared to have had) any effect whatsoever. Industry injury and fatality statistics have, if anything, retreated from last year’s anomalous highs to their historic position of slow and steady diminution. No high-profile accidents have occurred that captured the media’s attention, making instant mine safety experts out of folks who have never even seen a mine. Only one thing has changed, the politics of the issue. When the Miner Act was debated, minority members of the committees with jurisdiction in the matter complained bitterly that it was not strong enough or that it did not go far enough. Those folks now control the very committees that frustrated their positions…and gave us the Miner Act that we now have. But those who have proposed the new amendments appear discontent to allow the current amendments to even take effect before they make their statement. Rather, without any good reason, they have railed against our industry, suggesting once again, without reason, that the only way to increase mine safety is through higher penalties and stricter enforcement. There were no data or other information to support that approach when the Miner Act was passed, and there are no data to support it now. First of all, one must keep in mind that the Mine Safety and Health Act is a strict liability statute. That means that even if the operator had nothing to do with a particular violation, that operator is penalized anyway. Where the operator has no part in a violation, a higher penalty means nothing. All it does is shift responsibility away from those who may have caused it. And, to the extent that there are data, these data suggest that the S-MINER Act is not needed. After all, the statistics recovered well before any of the Miner Act’s provisions took effect and significantly before MSHA’s new penalty regulations were in force. Let me reiterate what I have said over and over again. Everyone in the mining industry is striving to make it safer, and there is no one that wants to see another fatality. But the S-MINER Act is not the way to get it. In the first place, the more the debate is about liability, the less it is about safety. Raising penalties necessarily leads to increased litigation. Increased litigation means diversion of resources to legal costs rather than safety costs. But more importantly, the more accusatory the process is, the less likely it is to lead to a frank discussion about root causes, not to mention fault. Here’s what really gets to me. While we all recognize that mining was once the most dangerous occupation in America, those days are lost in history. My guess is that no other industry can show the kind of improvement throughout the years that the mining industry has shown. And that result was achieved without the Miner Act or its putative successor. What about industries that have succeeded mining as highly dangerous fields? Not only is there no effort to encourage them to achieve what we have achieved, but in fact, the opposite is true. Rather than trying to address the safety issues inherent in at least one of those industries, we celebrate them. Anyone seen “Deadliest Catch” lately? Now, I understand that crab legs are more strategically important than coal, copper, or aggregate, but the significance of this ironic situation cannot be lost. It must mean that bashing the mining industry will gain political points, but bashing the fishing industry will not. That is a situation that only we can remedy. If we want to avoid the pointless vilification inherent in the S-MINER Act, we must act in unison to accomplish that end. I urge you all to take an active role in the campaigns our national, state, and local organizations are mounting to oppose this needless legislation. Let your legislator know just how counterproductive this new legislation will be. Now. Before it’s too late. September 2007Understanding Negligence
by Cole A. Wist Law students spend many hours learning about the legal concept of negligence. My law school’s tort professor would probably disagree, but this is not a big mystery or a complicated subject. The next time you look to see which negligence box the Mine Safety and Health Administration (MSHA) inspector has checked on a citation, keep the following concepts in mind. Negligence is simply the degree of fault involved in causing a violation or accident. MSHA views negligence on a sliding scale — from none to low to moderate to high to reckless disregard. Routine negligence, as defined by the Review Commission, is conduct that is “inadvertent,” “thoughtless,” or “inattentive.” High negligence or reckless disregard is a more significant degree of fault: conduct that is “not justifiable” or “inexcusable.” When an operator could not or should not have known that a violation existed, high negligence or reckless disregard cannot exist because such a finding would indicate that only routine (low or moderate) negligence occurred. Similarly, management is not negligent when a violation resulted from the unforeseeable conduct of a miner and such conduct is beyond the operator’s control. Conversely, an operator may be negligent (i.e., exhibiting indifference, lack of due diligence, or lack of reasonable care) where an operator should have known of a violation because a reasonably prudent operator would have discovered and abated the violation. Consider the following issues when analyzing the appropriate degree of negligence that should be assigned to a violation: 1. How long did the violation exist before the inspector discovered it? 2. Did the seriousness of the hazard justify increased attention by the operator in order to prevent or correct it? 3. Has the same violation occurred before? 4. Did the violation result from deliberate activity by the operator or management personnel? 5. Did the operator or management personnel have reason to know that its conduct violated the standard? 6. Could management personnel have learned of the violation? Would it have been difficult to discover the violation? If so, how difficult? 7. Did the violation occur in an area or on equipment that is routinely pre-shifted or inspected? Could the violation have been discovered during mandatory inspections, routine travel, or routine equipment use? 8. Did the violation result from a failure to report as required by company policy? Did it result from a violation of training or company policy? Was it caused by a miner’s unforeseeable conduct? 9. Are there records showing that the violation did not exist before the inspector observed it? Are there records showing pre-inspection corrective actions, but the violation reoccurred during inspection? 10. Were there prior approvals by other MSHA inspectors of the condition or practice? An operator may show “mitigating circumstances” that either reduce or eliminate the degree of negligence involved. Mitigating circumstances are either circumstances beyond the operator’s control contributing to the cause of the violation, or unsuccessful preventive actions the operator undertook to prevent the violation. The operator should analyze the following issues to help identify potential mitigating circumstances: 1. Does the company have safety rules or practices that address the violation? If so, were they followed or violated by hourly employees? 2. Did the company provide any training (including safety meetings) on the alleged violation? If so, does the company have records of such training? 3. Were employees warned and/or disciplined for similar violations? 4. Does the company have records showing preventive action relating to the violation? 5. Are there other factors showing that the operator lacks fault, the violation was unforeseeable, or that the operator undertook good faith preventive efforts? As you evaluate your mitigating circumstances, prepare to ask MSHA (at the time the citation is issued and again at your conference) what evidence MSHA has to support the negligence finding on the citation. Remember, MSHA carries the burden of proof on this issue. If the inspector has not carefully evaluated the facts and mitigating circumstances related to negligence (which will become apparent if the inspector cannot explain his position or if the inspection notes contain no analysis or facts regarding degree of fault), you will be in a much stronger position to argue that the citation should be modified. You will only know this, however, if you engage the inspector in a discussion. Keep careful notes of this conversation. One final reminder, analysis of negligence is separate and distinct from evaluating whether a violation is significant and substantial (S&S). S&S determinations solely relate to the likelihood of an injury resulting from the violation and the seriousness of such an injury. Therefore, mitigating factors relevant to lowering negligence are generally irrelevant to proving that an accident was not likely or that any resulting injury would not have been serious. I encourage you to use these guidelines as talking points in your next discussion with MSHA regarding negligence. If you do, chances are you’ll be leading the discussion. At the least, you’ll send the message that the inspector must be prepared to explain his negligence findings to you. August 2007Flagrant Violations
by Brian Hendrix The Mine Safety and Health Administration (MSHA) is making quite a splash with its new enforcement tool, the “flagrant” violation. MSHA issued its first citations for six flagrant violations during April of this year. Since then, it has cited two other mine operators for six more flagrant violations. The maximum penalty MSHA can assess for a single flagrant violation is $220,000. For these 12 flagrant violations, MSHA has assessed almost $2 million in penalties. Right now, the average penalty for a flagrant violation is slightly more than $166,000. MSHA is on a roll, and you can expect it to classify more and more violations as flagrant (and to assess six-figure penalties to go along with them). Why? Well, Congress and others are pushing MSHA hard for production, and flagrant violations will enable MSHA to quickly boost its numbers. You might be thinking that you’ll never receive a citation for a flagrant violation. MSHA should only treat the most egregious violations as flagrant, and you aren’t that kind of operator, right? Well, the bad news is that MSHA has already expanded the definition of “flagrant” to include violations that you might not expect to fall into this new high-penalty/high-profile category. Here’s how Congress defined “flagrant” in the MINER Act of 2006: “A reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory safety or health standard that substantially and proximately caused, reasonably could have been expected to cause, death or serious bodily injury.” Seems fairly straightforward, right? Not to MSHA. In a “Procedure Instruction Letter” issued last fall, MSHA interprets the phrase “reckless or repeated failure” quite broadly in order to create two types or categories of flagrant violation. First, there’s the “reckless failure” category for “violations that are the result of reckless failure to make reasonable efforts to eliminate a known violation.” Thus, according to MSHA, a violation in the “reckless failure” category is flagrant if MSHA classifies it as: 1. significant and substantial; 2. reasonably likely to cause permanently disabling injury (or worse); 3. an unwarrantable failure, and; 4. the result of an operator’s reckless disregard. This seems fairly consistent with Congress’ definition of flagrant. MSHA did not, however, stop there. Instead, it went ahead and created a new “repeated failure” category for “violations that are the result of repeated failure to make reasonable efforts to eliminate a known violation.” According to MSHA, a violation in the “repeated failure” category is flagrant if MSHA finds or classifies it as: 1. significant and substantial; 2. reasonably likely to cause permanently disabling injury (or worse); 3. an unwarrantable failure, and 4. the third “unwarrantable failure” violation of the same safety or health standard issued to the mine operator during the past 15 months. Did you notice what’s new and what’s missing from the list? MSHA replaced “reckless disregard” with two prior unwarrantable failure violations of the same standard. That’s right, if you receive three citations for unwarrantable failure violations of the same standard and meet the other criteria, MSHA intends to classify the third violation as flagrant. There is one requirement that I haven’t covered. For any flagrant violation, whether MSHA classifies it as a reckless or repeated failure, MSHA must show that it proximately caused or could have reasonably been expected to cause death or serious bodily injury. I hope that MSHA will take this causation requirement seriously and classify as flagrant only those violations that did or really could have been expected to cause a serious injury. I am not, however, all that confident that’s what will happen in practice. Have you ever heard an MSHA inspector say that any violation that increases the potential for a twisted ankle or a bruise is “significant and substantial?” I know I have, and statements like that make me doubt that MSHA will take a hard look at causation. To avoid citations for a “repeated failure” flagrant violation, you can start by conducting a mini-audit of your violation history. Identify the top five most frequently cited standards at your operation. Then, focus your safety and health and/or risk management programs — including your maintenance and training programs — on compliance with those standards. If you’ve been cited for any unwarrantable failure to comply with a standard during the last 15 months, put that standard at the top of your list. The time you spend on the mini-audit and the necessary follow-up will be worth it. Testifying before Congress earlier this summer, the head of MSHA made it very clear that the flagrant violation is an “important enforcement tool” that “MSHA will continue to use.” I’m taking him at his word and predicting that the trend in MSHA enforcement will include more citations for flagrant violations. July 2007Time to Pay the Piper
by Marci M. Fulton The new regulations could have significant financial impacts on your operation. On March 22, 2007, the Mine Safety and Health Administration (MSHA) published “Criteria and Procedures for Proposed Assessment of Civil Penalties,” implementing the civil penalty provisions of the Mine Improvement and New Emergency Response Act of 2006 (the “MINER Act”). The assessment criteria will have two significant impacts on the industry. First, the days of $60 “single” penalty assessments for “non-significant and substantial” violations are gone. Second, operators of large mines, those who repeatedly violate the same standard and those whose violations involve high degrees of negligence or gravity will undoubtedly feel the pinch of higher penalties. While the jury is still out on whether the new penalties will have an effect on health and safety, one thing is certain — it will hit everyone squarely in the pocketbooks. What’s at stake? The new regulations could have significant financial impacts on your operation. Let’s start with the worst-case scenario. Under the MINER Act, the maximum civil penalty for flagrant violations is $220,000. MSHA has already shown its willingness to flex this particular muscle, issuing $795,600 in flagrant penalties fines to R&D Coal Co. in April 2007. The MINER Act also increased the minimum civil penalties for 104(d)(1) orders to $2,000 and for 104(d)(2) orders to $4,000. So how do the new regulations work? A mine recently received a proposed assessment for a high negligence, significant & substantial (S&S) order with a reasonable likelihood of causing a permanently disabling injury. Under the previous criteria for assessment, the proposed penalty was $1,769. This same assessment issued under MSHA’s new criteria would be $4,099, a 132-percent increase. Repeat violations of the same standard are a consideration added to the new criteria. Where an operator has a minimum of six repeat violations in the preceding 15-month period, additional penalty points are assigned. Imagine this mine had 60 inspection days and six violations of the same standard in the preceding 15 months. That adds nine penalty points, or $4,322, to the penalty, for a grand total of $8,361, a 373-percent increase. Many large, frequently inspected mines could be subjected to this increased penalty even if they have otherwise good citation and accident histories. What should you do about it?
The new penalties drive up the risk of severe enforcement, even for safe operators, and increase the need to challenge improper or questionable citations. Sadly, in the end, what arose out of a series of tragic mining accidents could lead to the diversion of resources from true safety efforts. Marci M. Fulton is an associate at Patton Boggs LLP’s Denver office where she advises clients on administrative and regulatory issues, particularly environmental, health, and safety issues, and civil litigation. Fulton may be reached via phone at 303-894-6121 or via e-mail at mfulton@pattonboggs.com . June 2007Calling in the Cavalry
by Willa B. Perlmutter Nobody likes to think about mine accidents. (Well, maybe the press likes to think about mine accidents. Congress, too, especially if it’s an election year. But normal people like you and me don’t like to think about mine accidents.) It is more true that nobody wants to think about accidents happening at their mine. Lives are lost or drastically changed, relations with the community are endangered, and the Mine Safety and Health Administration (MSHA) starts paying close attention to your operation in all the ways you don’t want. After an accident, there is a tendency on the part of both MSHA and the world outside the industry to blame the mine operator, regardless of the particular factors that led to the accident. As a purely legal matter, the Mine Act is a strict liability statute, which means that mine operators are legally responsible for any violation of the mandatory regulations, regardless of who is really at fault for the violation. What is more, under federal workers’ compensation laws, an employee or his family is entitled to payment from his employer in the vast majority of circumstances, again without any consideration as to whether the employer actually did anything wrong (although in several states, payments to victims increase if the accident was caused by a regulatory violation). In other words, in addition to the substantial human cost of an accident and the accompanying loss of good will in the community, an operator is also likely to face substantial economic costs by way of administrative penalties and workers’ compensation payments or premiums. The advance planning you do now, and the way you respond to an accident right at the outset of an investigation, will have a significant impact on what it costs your operation in the end. One of the ways that an operator can lessen the potential economic exposure is to take a hard look at the possibility that a third party may be responsible for all or part of the loss. I am not suggesting that the operator indiscriminately look for an opportunity to point a finger at someone who does not really deserve the blame. Sometimes, though, it is completely appropriate to shift some of the liability for an accident elsewhere. Did a piece of equipment malfunction and cause the accident? Did the accident happen because a contractor did not carry out its responsibilities in a safe and prudent manner? Unfortunately, as an operator you may not have a lot of time after an accident to sift through the facts to search for a responsible third party. MSHA arrives on the scene to carry out its investigation. Your insurance company is likely to send an investigator and may well start pressuring you early on to reserve sufficient funds to meet any applicable deductible for workers’ compensation coverage. If the individual involved in the accident was not one of your employees (maybe even if he was, depending on what state you operate in), it’s not inconceivable that some lawyers unfamiliar with mining, in general, or your operation, in particular, are going to show up wanting to tag along as MSHA does its investigation. This means that from the earliest possible moment that you learn of an accident, you need to be thinking about the factors that gave rise to that accident and analyzing whether those factors include a third party who might be held responsible in some way for what happened. That sounds quite callous, I know, and maybe it is the kind of analysis that only a lawyer can really get excited about. Think about it, though. A piece of electrical equipment blows up while it is being brought on-line, injuring a contractor. Nobody at your operation did anything wrong. Why should your company be forced to accept liability for the accident, simply because workers’ compensation laws prevent him from recovering against his own employer? A poorly-designed conveyor system fails and one of your employees is injured or dies as a result. Don’t you want MSHA to know that, notwithstanding your strict liability as an operator, any enforcement actions brought by the agency should take into account the fact that somebody else was really to blame? At your mine site, a contractor disregards safety regulations and one of your people is the victim of their carelessness. Doesn’t it make sense to ensure that the investigators focus on the real cause of the accident, both to maximize any recovery to your employee and his family and also to minimize the potential exposure to your company? In some states, the designer or manufacturer of a piece of defective equipment can be held financially responsible for the economic losses you suffer as a result of a catastrophic malfunction. Why shouldn’t your operation recoup its losses? We have seen every one of these scenarios in real life and in each instance were able to minimize the financial cost to operators by responding quickly and intelligently managing the investigation to ensure that the agency’s investigators reached the appropriate conclusions. That’s a lot to think about right after an accident, when you are dealing with investigators and lawyers as well as maybe the victim’s family — and probably the press. Thankfully, though, it’s not something you have to do alone. Ideally, you already have in place a plan for handling the aftermath of an accident. (If not, you should.) Certainly, in the case of a serious accident, your plan should already include calling your lawyer. We’ve heard all the lawyer jokes. (Heck, we like to tell them ourselves.) Kidding aside, though, there are a lot of reasons to bring in counsel after a serious accident. First, it makes sense from a strategic point of view. Although non-lawyers at the company can certainly interview personnel and collect information about the accident, involving a lawyer means that the information the lawyer collects will most likely be protected from disclosure to the government by the attorney/client and attorney work-product privileges. That means that a lawyer can probably limit the bad news that comes out during the course of the company’s investigation — say, for example, that the accident occurred as the result of human error, or because a piece of equipment was not maintained for safety. In addition, a lawyer is able to provide an insulating layer between your people and the government investigators. That may not always be necessary, but if there’s a problem and the government is looking hard at one or more of your employees, your people will appreciate having legal counsel around. A lawyer can evaluate the evidence as the investigation is developing and make sure your people are protected as much as possible. He or she generally sits through interviews and makes sure that MSHA not only interviews your employees fairly, but also that the MSHA investigators understand what they’re hearing. And when appropriate, a lawyer can play the heavy with the government so your employee doesn’t have to. (People somehow expect lawyers to be difficult. Don’t ask me why.) But the real reason that you want to have a lawyer involved in any significant investigation brings me back to where I started. When you are sifting through the aftermath of a serious accident, trying to figure out exactly what happened and who, if anybody, properly bears the blame, it helps to have outside expertise. Your lawyer is in a good position to consider the facts and evaluate whether a third party might be responsible for what happened. A lawyer can work with your workers’ compensation carrier to minimize the reserves they require you set aside to cover any deductible. If the technical issues are beyond the lawyer’s immediate ability to comprehend, he or she can get the technical assistance necessary to ensure that the evidence is interpreted properly (and to ensure that MSHA understands the evidence) and that the best possible groundwork is laid for any subsequent third-party claims that the company later decides to make. Like I said, nobody likes to think about accidents happening at any mine, let alone at their operation. Nobody wants to see their people hurt, or worse, and there is a natural tendency to be self-critical after it happens. Sometimes, though, it simply isn’t appropriate to accept the blame when it properly belongs to someone or something else. I hope you never have to face that situation. If you do, though, you will be in far better shape in every respect if you have planned in advance what you will do if and when the contingency arises. And call your lawyers. Willa B. Perlmutter is a member of Patton Boggs LLC’s Environment, Health and Safety practice group and is based in the firm’s Washington, D.C. office where she has practiced since 1997, focusing her practice primarily in the area of mining law. Before that, she was a staff attorney for the Bureau of Indian Affairs at the U.S. Department of the Interior. Perlmutter may be reached via phone at 202-457-5223 or via e-mail at wperlmutter@pattonboggs.com . May 2007Discrimination Elimination
by Donna Vetrano Defending against discrimination complaints under the Mine Act can be an expensive, time-consuming, and confusing experience. Even if the complaint is without merit, a company can be forced to defend itself in a discrimination action. However, with the right preparation and prompt attention to the underlying complaint, an operator might be able to avoid a formal complaint and hearing. First, here’s some background. Section 105(c) of the Mine Act is intended to encourage employees to exercise their safety and health rights under the Act. Section 105(c) extends to miners, applicants for employment, management, and miner’s representatives. For a party to successfully bring a discrimination claim under 105(c), the person must prove the following: (1) that they engaged in protected activity; (2) that they suffered an adverse act of discrimination; and (3) that a link exists between the protected activity and the alleged discriminatory conduct. What qualifies as a protected activity? Examples of some protected activities include the following:
Once a complainant shows a miner has engaged in protected activity, the miner must then show there was a link between the protected activity and the alleged discriminatory conduct. Note that the complainant has the burden of proving that the discrimination (which can be something as minor as a written warning) is a result of his or her protected activity — not because of some other unprotected reason, such as absenteeism or poor work performance. If the complainant can meet this burden, then the burden shifts to the operator to show either: (1) that the activity was not protected; or (2) that the operator was motivated by unprotected activity and would have taken the adverse action for the unprotected activity alone. Here’s a sample scenario: Joe Miner is continually late for his shift and is given several verbal warnings for tardiness under Company Inc.’s policy. Miner is late yet another time and is given a written warning from his supervisor. Around that same time, Miner makes a safety complaint to a miner’s representative regarding unstable ground conditions. Miner files a discrimination complaint against Company saying the written warning was only given because he made a safety complaint. Miner says there is a link between the written warning and his safety complaint because he was never given a written warning before, despite his repeated tardiness. Company must now show that its true motivation in giving Miner a written warning was his repeated tardiness and that Company would have given Miner a written warning regardless of any safety complaints he or she may have made. The procedures Once a discrimination complaint is filed with the Mine Safety and Health Administration (MSHA), a copy of the complaint is mailed to the operator. Within 15 days of receiving the complaint, MSHA special investigators must begin an investigation of the alleged discrimination. The investigation may include interviews of the complainant, the operator, and others having information relating to the complaint. Of course, all employees have the option of not talking to special investigators when they arrive on site. Also, it is essential that operators be prepared in advance so that management employees know their rights and understand Section 105(c) of the Mine Act. Additionally, if the employee being interviewed agrees, the operator’s attorney (or other representative) can be present at the interview. Within 90 days of the filing of the complaint, the Office of the Solicitor — in conjunction with MSHA special investigators — will decide whether the Secretary of Labor will prosecute the case for the complainant. However, even if the Office of Solicitor determines that no violation occurred, the complainant may then pursue a discrimination action on his or her own (with or without an attorney representing them). If the Secretary concludes that a valid complaint has been made, then a formal complaint will be filed on behalf of the miner by MSHA. The case will then be assigned to an Administrative Law Judge and will be tried before the judge. Practical considerations
April 2007Monster Guards
by Brian Hendrix If you have worked in this industry for very long, you have probably seen at least one: the monster guard. Picture a tail pulley virtually entombed in layers of steel mesh, screen, and/or wire — all bolted or welded together — completely covering every conceivable hole, angle, and gap. That is a monster guard. It is the exact opposite of an original equipment manufacturer (OEM) guard. It haunts maintenance crews, wastes time and money, and has almost nothing to do with safety or compliance. At surface non-metal, sand and gravel, and stone mines, the Mine Safety and Health Administration’s (MSHA) most frequently cited violation is for guarding. In other words, MSHA cites 30 CFR § 56.14107 more frequently than any other regulation in the book. A citation is bad enough, but a monster guard can lead MSHA to issue high negligence, unwarrantable failure citations or orders, conduct special investigations, and assess individual civil penalties. The goal here is explain how a monster guard can increase your liability and how you can prevent, manage, or avoid that entirely. First, you need to understand how a nice, “normal” guard becomes a monster guard. MSHA inspectors are human, and many of MSHA’s regulations are performance standards and quite open to interpretation. For example, 30 C.F.R. § 56.14107 simply requires operators to guard “moving machine parts” to “protect persons from contacting” those parts. That is hardly an exact standard. As a result, one MSHA inspector might interpret, apply, and enforce it a little differently than another inspector. Since MSHA inspects every surface mine at least twice a year, you can get at least two different interpretations every year. For example, let’s say that three inspectors at a mine passed by a guarded tail pulley during three regular inspections without any comment at all. Then, during MSHA’s most recent inspection, a fourth inspector issues a moderate negligence, 104(a) citation for that same guard. The tail pulley was safely guarded, but the inspector — we’ll call him Inspector No. 4 — cited it because he thinks a hand might fit through five small, very difficult-to-reach gaps several feet off the ground between the existing guard and the frame of the conveyor and might possibly come into contact with the tail pulley. To abate the citation, he expects the operator to guard these gaps. It is the mine operator’s response to such a citation that turns the normal guard in our example into a monster. Instead of questioning or challenging the citation, the operator decides to just abate the alleged violation and pay the fine. We are all busy, and we have to pick our fights carefully. It takes less time to weld or bolt guards over these gaps and pay the fine than it would to conference the citation, so why bother? Sure, it will turn the guard into a monster, but it’s just not worth the fight. Right? Wrong. When a belt needs to be repaired or a bearing greased, these monstrosities take lots of time to remove, piece by piece. After wrestling with one of these monsters, a typical crew is loath to just replace a monster guard with another monster guard. Any good maintenance crew can tell at a glance that these guards have nothing to do with safety. Safe is guarded, not mummified. So, what usually happens is that the crew eventually replaces a monster guard with a nice, “normal,” perfectly safe guard. It looks exactly like the original guard, before the operator started welding and bolting on additions to it just to please Inspector No. 4. That makes complete sense, right? No, not to Inspector No. 4. He expected the operator to guard those five little gaps and to keep them guarded. He even issued a citation because they weren’t guarded. Now, if he returns for another inspection and finds that the new guard that doesn’t cover those five little gaps, he’s certain to issue another citation, but this time he may accuse the operator of being highly negligent or worse. Inspector No. 4 might even classify the alleged violation as an unwarrantable failure, particularly if the foreman of the maintenance crew or the mine manager knew that the monster guard had been replaced with something different. If so, the citation could lead to a special investigation and the assessment of an individual civil penalty. Of course, this citation has as much merit as the first citation issued by Inspector No. 4, and the operator can certainly conference or contest it. Regardless, the operator in our example will spend a whole lot more time and effort fighting the serious allegations in the new citation than the operator would have spent conferencing or contesting the first citation issued by Inspector No. 4. The operator in this example definitely should have questioned or challenged the first citation. The hypothetical example might seem a bit simple and unrealistic to you. Unfortunately, it is not unrealistic; it has, does, and will continue to happen. However, it is very simple and very easy to avoid. If you disagree with an inspector about a guard, politely explain why you disagree and why you believe the guard is safe and complies with 30 C.F.R. § 56.14107. If he issues the citation anyway, think about our example when you’re making your decision to conference or contest the citation. Think about the monster guard, and what can happen two or three inspections down the road. March 2007Regulatory OversightWhen it comes to inspections, the Federal Railroad Administration may also have responsibility for health and safety at some sites. by Peter S. Gould Most of us are familiar with both the Occupational Safety and Health Act of 1970 (OSH Act), which gives the Secretary of Labor authority to regulate all working conditions of employees engaged in business affecting commerce, and the Mine Safety and Health Act of 1977 (Mine Act), which gives the Secretary of Labor authority to regulate working conditions at mines. Many of us also know that in 1979, the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) entered into an interagency agreement to clarify the boundaries of the agencies’ respective jurisdictions. The agreement was an attempt to simplify questions regarding the two agencies’ authority and to provide for coordination between them “in all areas of mutual interest.” Under the agreement, if a facility supports mining activities to any extent — with the notable exceptions of concrete batch (ready-mix) plants and asphalt batch (hot-mix) plants whether or not located on mine property — MSHA may choose to assert its jurisdiction. The agreement further states that all doubts as to which agency has authority are to be resolved in favor of MSHA. It is not as widely known, however, that prior to the creation of OSHA and MSHA, Congress passed the Department of Transportation Act of 1966 (Transportation Act), charging the Secretary of Transportation with devising regulations and issuing orders “for every area of railroad safety.…” In doing so, Congress granted the U.S. Department of Transportation’s Federal Railroad Administration (FRA) broad authority to regulate transportation, including both employee and passenger safety, on all forms of non-highway ground transportation that run on rails or electromagnetic guideways. In practice, FRA’s safety jurisdiction is generally limited to railroads operating on the general railroad system, including “commuter or other short-haul railroad passenger service in a metropolitan or suburban area.” Thus, insular railroads solely confined to the boundaries of industrial plants or mines are not regulated by FRA, while railroads operating on the general railroad system remain subject to FRA’s regulations, even if they enter and operate for a limited duration within the confines of an industrial plant or mine. With passage of the Transportation Act, Congress also granted the Secretary of Transportation “exclusive authority” to enforce safety standards, although FRA has delegated some of that authority to OSHA for safety pertaining to “railroad yards, shops, and associated offices…with respect to conditions not rooted in nor so closely related to railroad operations.” Further, similar to OSHA and MSHA, FRA promotes and regulates rail industry safety throughout the United States, through its Office of Safety. According to FRA’s Web site, the Office of Safety employs more than 415 federal safety inspectors, who operate out of eight regional offices nationally. Although many aggregate mines and related non-mining operations entail short rail lines that exist entirely within the mine site, which may in fact be insular and not subject to FRA regulation, other mine sites or plants may abut or incorporate large switchyards that are deeply interconnected with the general railroad system and may thus be properly regulated by FRA. In other words, under certain, limited circumstances, a mine’s railroad operations, which MSHA or OSHA may currently be inspecting, might instead be subject to FRA’s authority. The implications of FRA asserting jurisdiction over a particular rail-related function are manifold, however, and may not necessarily be preferable to MSHA or OSHA oversight. For example, different training requirements and safety standards exist among the several agencies and compliance with a new agency’s or even multiple agencies’ health and safety regulations may prove difficult and require an undesirable allocation of a company’s resources. Further, multiple agencies’ inspections place additional burdens on an operator. Factors that may weigh in favor of FRA jurisdiction are: (1) whether a particular non-insular line or switchyard services cargo for non-mining activities and for businesses other than your mine and (2) whether a non-mining business entity owns the track and operates it as a common carrier. Conversely, if you believe that FRA is now improperly exercising jurisdiction over internal or insular rail lines at your mine, and you would prefer a different agency’s oversight, you may wish to reach out to MSHA or OSHA to request one of them to assert jurisdiction in FRA’s place. Keep in mind, however, that the creation of FRA reflects Congress’s belief that the Department of Transportation, rather than the Department of Labor, is the best position to oversee the safety of railroad employees. While the chances that your paths will cross with the FRA’s are relatively remote, being aware of the various health and safety agencies’ roles will serve you and your mines well.February 2007The Penalty MessMSHA’s new penalties are likely to increase a focus on compliance, but not necessarily safety. by Mark Savit At Aggregates Manager’s press time, the comment period on the Mine Safety and Health Administration’s (MSHA) proposed new penalties has just closed. At this point, the only thing that we can do is wait for the final rule. Although we won’t have the final rule until some time before the end of the year, it appears from all public sources that we, as an industry, are in for a sea change. We all know that the recently passed Miner Act required MSHA to adopt new penalties to conform to its requirements as well as to reflect the increase in the maximum penalty from $60,000 to $220,000. But the recent proposal went far beyond what was required. Just in case you haven’t seen the proposal, let me summarize a few key points. First, MSHA proposed to eliminate the single penalty assessment; the rule that sets a standard penalty of $60 for all non-significant and substantial (S&S) citations, regardless of the penalty that would have been yielded by the existing points formula. Second, MSHA proposed to drastically re-adjust the penalty formula such that penalties will be significantly increased — especially for the largest operators. Third, MSHA proposed to abolish the criteria it uses to determine when a special assessment is appropriate — a proposal which would leave this critical decision to MSHA’s unguided discretion. Fourth, MSHA proposed to add a new penalty criterion to reflect repeated violations of the same standard. Finally, MSHA proposed to cut the time to ask for an informal conference from 10 days to five days. The enormity of just the first two parts of the proposal is illustrated by the fact that, by eliminating the single penalty assessment and implementing the new penalty point schedule, a large operator could be penalized more than $1,300 for a violation that was penalized at $60 under the prior system — an increase of more than 2,000 percent. If the violation turned out to be repetitive of several prior citations, the penalty would be significantly higher. Given that slightly more than 70 percent of all citations are classified non-S&S, the total impact of this proposed increase could be huge for a large, frequently inspected property. In the preamble to the proposed rule, MSHA states repeatedly that it “believes” that its proposals will both lead to a reduction in accidents and fatalities without raising penalties so much as to cause significant damage to mining companies. MSHA offers no factual support for either proposition, but that isn’t surprising, since each part of this proposition either contradicts findings that MSHA has already made or is contradicted by MSHA’s own data. First, MSHA has several times found that it could not correlate a mine’s citation history with its accident history. In other words, MSHA itself has already found several times that it has no real data to support the central proposition behind its proposal — that higher penalties will lead to a reduction in accidents. In addition, MSHA relies on a similarly unsupported belief to conclude that costs to companies will not increase significantly because the higher penalties would induce operators towards further compliance, and thus a reduced number of citations. In fact, however, MSHA’s own statistics show that the number of citations increased after each of MSHA’s previous rules raising penalty amounts. Not only is MSHA’s reasoning contradicted by its own prior findings, it is based on a fundamentally flawed premise — that the only thing that will induce mining companies toward greater safety is increased punishment for rule violations. Please understand, there are certainly some companies whose behavior will be influenced by increased penalties, but the great majority of companies are committed to safety and already spend great amounts of time, money, and effort attempting to improve their already good safety records. What is more, as we all know, the Mine Safety Act holds operators liable even if the violations were not the operator’s fault. One wonders what effect increased penalties could possibly have on violations which were not the operator’s fault in the first place. Finally, it is important to keep in mind that, during the last 10 years, there has been more or less consistent improvement in safety in our industry without any significant increase in penalties. While the mining tragedies that have befallen the coal industry this year cannot be forgotten, they must not be used to scapegoat an entire industry. While the efficacy of the proposed changes in the penalty system has yet to be demonstrated, one thing is certain; the increases will lead to more and more litigation, diverting resources away from safety programs. In other words, the proposed changes in the penalty calculation system are most likely to have precisely the opposite effect of that which MSHA posited. While more attention may well be devoted to compliance, it is not all certain that it will be necessarily related to safety. While we may not like the result of MSHA’s latest proposal, we need to rise above it. We can’t lose track of the fact that the goal is safety first no matter what others think. January 2007Risk Reduction
by Henry Chajet The President’s “recess” appointment of Richard Stickler as Assistant Secretary of Labor was made after Senate Democrats twice refused to confirm him, complaining that his industry background renders him not “tough enough” on mine safety. As if to show how tough he is, Secretary Stickler’s first official act was to interpret the new $220,000 maximum penalty for flagrant violations in an expansive manner. According to terms of the new law, the flagrant penalty was added to Mine Act Section 110 (b) (failure to abate penalties) and is defined as the following: “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.” The Mine Safety and Health Administration’s (MSHA) proposed rule and its October policy interpretation, however, provide inspectors with the opportunity to describe violations as flagrant, even if they do not include the failure to abate a previously issued citation. First, the rule proposal interpreted the MINER Act as amending Section 110(a) of the 1977 Mine Act, instead of 110(b) as it actually did. Second, the policy memo permits inspectors to designate as flagrant either: 1. Reckless violations that are:
Or 2. Repeat violations that are:
The expanded definition of flagrant to include two prior unwarrantable violations instead of “reckless or repeated failure” to eliminate a known violation that is subject to the Mine Act (section 110(b) failure to abate penalties) will cover routine citations — such as those issued for housekeeping or accumulations of spilled materials — that some inspectors treat as unwarrantable and attribute to high negligence. Even though the risk from these violations in non-coal facilities is low, inspectors often call them permanently disabling, S&S, and would thus qualify them for flagrant penalties under Stickler’s new policy. Even before Secretary Stickler took office, MSHA headquarters reportedly was asking district managers why operations in their districts had not been identified as amassing a “pattern of significant and substantial violations.” The queries followed soft-on-enforcement criticism of MSHA leveled by various Senators during the hearings leading up the Miner Act. Within the last few months, a number of facility operators received potential pattern notice letters, providing them with the “opportunity” to submit information as to why they should not be placed on a pattern. These operators were reminded that a pattern recipient is issued a closure orders for every S&S violation until it undergoes an entire inspection without any S&S violations (a virtual impossibility if the inspector is so inclined). These are just two of the “get ready” warnings issued by MSHA during the last few months. Facility operators, who fail to heed these warnings, do so at their peril. The Miner Act also increased criminal penalties and imposed new minimum penalties for “routine” unwarrantable violations ($2,000 for Section 104 (d)(1) violations and $4,000 for (d)(2) orders) and for failure to notify MSHA within 15 minutes of a fatality or entrapment that is likely to lead to a fatality ($5,000). MSHA went beyond even the Miner Act in its new Emergency Temporary Standard provisions for notification and demands 15-minute notification for all 12 defined “accidents” set forth in 30 CFR Part 50. Of course, MSHA risks are only the beginning of risks created by agency actions, which often are used by plaintiffs’ lawyers and prosecutors. Operators should consider the implementation of a planned risk reduction strategy that includes the following steps: Audit at least three critical MSHA documents that are the most likely to form the basis of severe enforcement, including the following: (a) training records; (b) area inspection records; and (c) pre-ue mobile equipment inspection records. Review and confirm the validity of a selected sample of these records, the adequacy of follow-up (abatement) and follow-up records, and the process in place to record, review, and act on the information contained in the records. Train management personnel on handling MSHA inspections and investigations; particularly on document requests and answering MSHA questions truthfully, but without providing harmful admissions (e.g. How long have you known about that?). Initiate programs to prevent repeat violations by analyzing the 10 most common violations at each site and using daily safety talks (and records of them) to emphasize preventive efforts. Retrain employees that regulatory violations and hazards must be abated by them when encountered, if possible to do so safely, or protected against and reported to management if they cannot be fully abated safely. Enforce safety rules with even-handed and fair employee discipline, starting with counseling and progressing up to termination, to demonstrate the company’s commitment to compliance and safety and establish “mitigating circumstances” that reduce negligence. Review and improve contractor use programs to achieve published safety and health policies through hazard warnings, regulatory compliance requirements, and training mandates for specific MSHA (and OSHA) mandates in contract language that also includes indemnification, defense, and insurance duties for all contractors. Retrain management on effective crisis response, including the new accident notification mandates, preservation of evidence and documents, participating in government investigations, community and press relations, and preventing suspicions of conspiracy or obstruction. When employers review, establish, and improve these programs, they have found the efforts to be universally successful in reducing human risks, as well as enforcement and liability risks. At the same time, these efforts provide management with the knowledge and confidence they need to successfully meet the challenges posed by the new MSHA.
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