April 3, 2013
It’s Ba-ack! On March 17, Rep. George Miller (D-Calif.) and 17 other democratic co-sponsors introduced HR 1373, the Robert C. Byrd Mine Safety Protection Act of 2013, a revised version of last session’s model that refocuses its emphasis away from pushing a prescriptive mandate for pattern of violations’ criteria to heightening mine operator liability for Mine Safety and Health Administration (MSHA) transgressions and interference with miners’ rights.
The detailed pattern of violations provisions were no longer needed because MSHA finalized its own POV rule, which took effect on March 25. Even though the agency has been sued over the standard, the court has thus far not stayed its implementation.
However, “Byrd 2013” would add some POV features to the mix: a mandatory doubling of civil penalties for POV violators and granting the operator to discuss its POV status as part of a normal pre-inspection conference. It also seeks, in part, to nulllify the pending litigation by formally adopting the MSHA POV final rule as having the “force and effect of law … subject to an act of Congress.”
It also modifies the former “pattern” of violations language in Section 108(a)(2) of the current Mine Act (which was used by a court to give MSHA the power to shut down a mine over a pattern of hazards even where formal POV criteria were not met). The new version would grant this injunctive power where the Secretary of Labor finds a course of conduct which constitutes “a continuing hazard to the health or safety of miners” – including both regulatory violations (e.g., a violation of 30 CFR Part 56) and statutory violations (those under section 103(a) for impeding an inspection, for example).
The 76-page proposed law has many sections that will give mine operator, agents of management and contractors pause… some carried over from last year’s model, some new ideas, but most are punitive in nature and (unlike some in the 2006 MINER Act, which directed new rules for communication and emergency procedures for underground coal mines or required additional research on mine safety) may do little to actually improve safety.
However, the bill’s opening provision is a sound one: requiring independent accident investigations by a five-member panel, where three or more deaths are involved in an incident, chaired by a NIOSH representative and with a balance of management and labor representatives. This type of transparency will be welcome, and will hopefully result in more accurate reports that do not appear to be written solely to support MSHA’s enforcement posture.
On the other hand, as an attorney who regularly represents mine operators and their agents in MSHA proceedings, I am horrified by some of the interference with legal rights included in the bill. The legislation would give MSHA unlimited pre-citation subpoena power for documents and to compel testimony from witnesses. But the legislation gives MSHA and its attorneys the right to privately question any individual — without the knowledge, pressure, or involvement of the mine operator, its agents (e.g., the safety director), or its attorneys.
However, while individuals could demand to be represented by their individual attorney, the measure would largely bar any attorney from representing both the mine operator and its agent(s) as is commonly done.
This means that if MSHA conducted a special investigation or used its subpoena power and targeted three supervisors in a company, four different law firms would have to be retained in the case or else some agents would be left defenseless. And it would be MSHA’s right to challenge any joint representation by forcing a preliminary injunction hearing in U.S. District Court, prior to any litigation on the underlying citations, orders or penalties.
At the bottom line, the current Mine Act is a criminal statute (see Section 110) and the 2013 version enhances those against both the companies and the “directors, officers, and agents” involved in the violative conduct. A knowing violation of a mandatory standard, violation of any Section 104 or 107 order, will face a criminal penalty of $250,000 and one year in the federal penitentiary for the first offense, and $1 million and five years for a second offense. It also adds a $1 million/five years sanction where the violation “recklessly exposes a miner to a significant risk” of serious injury, illness, or death (no actual injury would be required).
A new criminal penalty of five years imprisonment is added for agents of management who knowingly retaliate against a miner for exercising their protected right under Section 105(c) or acting against the spouse, child, sibling or parent of the miner who exercised their rights (barring “bootstrapped” retaliation).
Penalties for giving advanced notice of inspections (a huge issue for MSHA since the Upper Big Branch catastrophe) would also be heightened (five years imprisonment for management, up to 1 year for other miners). Given that MSHA would be expected to expand its use of the new criminal powers, it is hardly appropriate to deprive mine agents of their constitutional right to counsel of their own choosing during such investigations and related litigation!
The Byrd 2013 bill also hikes civil penalties for MSHA violations, adding a new $220,000 maximum penalty for violations involving changes to any mine’s ventilation system or control without MSHA approval, violating the advance notice provision, and two other violations specific to coal. It sets new penalties for violations of miners’ rights ($10,000 to $100,000 for first offense) and bars the Commission from lowering penalties below the MSHA proposed assessment except in extraordinary circumstances. Currently, the FMSHRC has “de novo” penalty authority, and often lowers MSHA penalties significantly (although a few judges are famous for doubling or even quadrupling MSHA fines).
Pre-final order interest would also be charged, running from the date that the operator contests a penalty, ending with the issuance of a final order (if any) against the company.
The bill is silent on whether one could be charged interest even where the operator partially succeeds in modifying a citation and its penalty. At 8 percent, significant interest could accrue on the original amount while a case languishes in the Multi-year, 50,000+ citation contest backlog at the Commission! If the operator is more than 180 days delinquent in paying its MSHA fines, the bill authorizes the agency to force withdrawal of all miners until the bill is paid.
The legislation also contains changes to miners’ rights, spelling out some court-determined rights in statutory language (eg, work refusals) and expanding the statute of limitations for filing a discrimination complaint from 60 days to 180 days.
It also continues a miner’s temporary reinstatement where MSHA drops the case but the miner continues it on his/her own, thereby reversing some recent U.S. Court of Appeals’ decisions. If MSHA did represent the miner and won, the mine operator would have to pay the agency’s attorney fees. Miners would also have the right to pay continuation for up to 60 days if a mine is temporarily or permanently idled or closed by MSHA under an order.
There are other odds and ends in the bill that will engender debate; for example, annual refresher training would expand to nine hours duration, with one hour specific to the statutory rights and responsibilities of miners delivered either by an MSHA representative or by an independent trainer approved by the agency.
MSHA would also have broad discretion to mandate additional training for specific operators beyond the requirements of Part 46 or 48, if a serious or fatal accident occurred at the mine, if the mine’s incidence rate or rate of S&S citations was higher than average, if the mine had a “history” of inadequate training or just because MSHA decided it “would benefit the health and safety of miners.”
Finally, it broadens language defining “imminent danger” and “significant and substantial” citations/orders, pretty much ensuring that many more will be issued and legally sustained.
So what are the prospects for this legislation? Hearings will be required, of course, and the Republicans in charge of the House Education and Workforce Committee will not be inclined to bring this up for a vote… at least not right now.
However, mine safety legislation has traditionally been event-driven. It was true in both 1977 and in 2006. The 2006 MINER Act was signed into law by President George W. Bush, after being passed by Congress which was, at that time, totally in Republican control.
If past is prologue and our brethren in the coalfields suffer another catastrophe, the aggregates industry could once again be subject to new sanctions as this legislation makes no distinction between different types of mining.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Maryland. Abrams provides consultation, safety audits and training services to MSHA- and OSHA-regulated companies. Contact Abrams at firstname.lastname@example.org or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com for more information.