New mine safety legislation could lead to bipartisan action

| Published on January 2, 2012

 

 

 

Adele Abrams

Adele Abrams

 

 

 

With the New Year comes a new round of legislative proposals affecting mine safety and health. Although legislative action was limited in 2011 largely to oversight hearings concerning the Occupation Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA), a development right before the holidays could change that for the coming year.

On Dec. 16, 2011, Rep. Shelley Moore Capito (R-W.Va.) introduced the first Republican-sponsored mine safety reform legislation. Her bill, HR 3697, is titled the “Mine Safety Accountability and Improved Protection Act,” and it joins the Democrats’ version of Mine Act reform, HR 1579/S.153 (the “Robert C. Byrd Mine Safety Protection Act of 2011”), which was sponsored by Rep. George Miller (D-Calif.) and Sen. Jay Rockefeller (D-W.Va.) in 2011 for deliberative purposes.

The Capito bill, which does not yet have a Senate counterpart, could be embraced in a bipartisan effort to strengthen the Mine Act, particularly if any other mining-related tragedies occur during the 2012 legislative session. As introduced, these bills apply to all types of mines, both surface and underground. In the previous congress, the similar legislation had exempted surface aggregate and cement operations.

So how does HR 3697 propose to change mine safety regulation as we know it? The main provisions advocated include the following:

  • Establishing a new five-member independent National Mine Safety Board to investigate the causal factors of significant accidents (three or more deaths) and to publish a report of its recommendations. The Board would also have subpoena power to compel testimony and production of documentary evidence, and the power to convene public hearings.
  • Giving MSHA unlimited subpoena power to require testimony of witnesses and production of information (currently subpoenas are only available in the event of public hearings).
  • Requiring each miner to designate a next of kin or a representative to represent him/her in the event that the miner is entrapped or otherwise prevented from acting on their own behalf.
  • Specifying that MSHA inspections will be conducted at various shifts/days to protect miners on all shifts, and requiring Part 50 reports to cover all miners working under the operator’s direct supervision (e.g., contractors who do not maintain their own supervisor on site).
  • Barring an attorney from representing the mining company and its agents unless there is a willful and voluntary waiver of foreseeable conflicts of interest, and, if MSHA believes that such a conflict exists, it can petition in the U.S. District Court to disqualify the attorney from participating in the case.
  • Changing the definition of “significant and substantial” violation to encompass any violation that “could significantly and substantially contribute to the cause and effect of a safety or health hazard if there is a substantial probability such violation could result in serious injury, illness, or death.”
  • Altering “Pattern of Violation” (POV) criteria and procedures and requiring MSHA to complete its rulemaking, but providing that different POV criteria could be adopted for different types of mines (e.g., underground or surface coal or metal and non-metal mines).  Certifications of mitigating factors that prevent MSHA from placing a mine under POV would have to be published in the Federal Register and transmitted to Congress. If a mine is placed under POV, the legislation would require all miners to be withdrawn while MSHA conducts a wall-to-wall inspection, and – as a condition of reopening – the operator would have to correct all identified violations and file a remediation plan with the Secretary (which MSHA would approve once satisfied that it was suitable). The mine would be subject to additional future inspections and performance evaluations and be charged for the cost of these “services.” MSHA would also have the ability to seek injunctive relief against operators whose mines constitute a continuing hazard to the health or safety of miners.
  • Allowing MSHA to revoke plan approval when it believes the plan was based on inaccurate information or where circumstances have materially changed since the plan was approved.
  • Doubling civil penalties for a mine under POV status, and adding a $10,000 minimum penalty against mine operators who engage in retaliation against any miner in violation of Section 105(c) of the current Mine Act.
  • Amending Section 110(c) of the Act to increase civil and criminal liability of officers, directors, and agents of the mine operator. Willful criminal violations would be punishable by a $1 million penalty and five years incarceration, which would also be the penalty for giving advance notice of MSHA inspections. The monetary penalty for making false statements to MSHA would rise to $50,000 (it already carries an incarceration penalty of five years).
  • Providing operators with a statutory right to conference citations with a designated “CLR” prior to the assessment of the civil penalty, and giving 15 days to request review and to state the basis for why any citation or order should be conferenced. The CLR would then have 15 days following the conference to affirm, modify, or vacate the citation/order.
  • Accruing pre-final order interest running from the date a citation/order is contested until a final order is issued (using a current Treasury underpayment rate of interest). Post-final order interest would run after 30 days of the order, at 8 percent per year.
  • Making payment plans available to operators based upon a demonstrated inability to pay, but permitting withdrawal orders to be issued if assessments are not paid within 180 days or a payment plan is not followed.
  • Amending Section 105(c) whistleblower protections, clarify work-refusal criteria, extending the statute of limitations for filing claims with MSHA from 60 days to 90 days and clarifying that the right to temporary reinstatement for non-frivolous claims extends both to cases that MSHA prosecutes, as well as those pursued by a miner pro se. Orders would not be issued in favor of the mine only if the operator shows, by clear and convincing evidence, that it would have taken the same action in the absence of protected conduct (e.g., safety-related complaints to management or to MSHA).
  • Protecting miners from loss of pay where a mine is closed under an order issued under Section 103 (e.g., accidents), 104 (failure to abate or unwarrantable failure orders), 107 (imminent danger orders), 108 (injunctive orders), or 110 (criminal orders) to extend – at the regular rate of pay – for up to 10 days.
  • Requiring MSHA to modernize safety and health standards related to pre-shift review of mine conditions (underground coal only), atmospheric monitoring (underground coal), and extended duration for annual refresher training (to include an extra hour on miners rights and responsibilities). Additional training could be mandated by MSHA after accidents (serious or fatal) or where the operator has a history of inadequate training or of violations of the Act and S&S citations or withdrawal orders.
  • Requiring certification of persons designated to perform duties or training in coal mines, to be coordinated with states that have miner certification programs. Allowing a non-certified person to perform any of these functions would be an automatic “unwarrantable failure” violation.

By comparison, the “Byrd” MSHA reform bill contains many key provisions in the 83-page legislation that parallel the Capito measure, and could be the basis for bipartisan legislation. The provisions in the Byrd bill that do not appear in the Republican version include the following:

  • It amends the Mine Act to require the Secretary of Labor (Secretary), in conducting health and safety related accident investigations in coal or other mines, to: (1) determine why an accident occurred and whether there were violations of law, mandatory health and safety standards, or other requirements; (2) in cases involving violations of federal criminal law, refer them to the Attorney General; and (3) make recommendations to avoid any recurrence.
  • It requires an independent accident investigation by an independent panel appointed by the Secretary of Health and Human Services (through NIOSH) for any accident: (1) involving three or more deaths, or (2) whose severity or scale merits an independent investigation.
  • It authorizes: (1) the Secretary’s representatives and attorneys to question any individual privately during an inspection or investigation; and (2) any individual willing to speak with or provide a statement to such representatives or attorneys to do so without the presence, involvement, or knowledge of the mine operator or mine operator’s agents or attorneys.
  • It directs the Secretary, upon the request of the mine operator, to review with appropriate mine officials the Secretary’s most recent evaluation for pattern of violations status during the course of a regular mine inspection, or at the Secretary’s discretion, during the pre-inspection conference.
  • It changes whistleblower protections against discrimination by adding a new criminal penalty for retaliation, subjecting the individual(s) involved with discriminating against miners to up to five years incarceration.
  • It entitles a miner to full compensation by a mine operator at the regular rate of pay for the entire period (not to exceed 60 days) for which the miner is idled because of a Secretary’s withdrawal order.
  • It prohibits an underground coal mine operator whose mine has been in pattern status for three years from discharging (or constructively discharging) a miner paid on an hourly basis without reasonable job-related grounds based on certain failures to perform job duties satisfactorily if the miner has completed the employer’s probationary period of up to six months. In related action, it permits a miner aggrieved by violation of this prohibition to file a complaint in federal district court for reinstatement and compensatory damages.
  • It requires each underground coal mine operator to implement a communication program to ensure that each miner is orally briefed on and made aware of current mine conditions before traveling to or arriving at the mine work area and commencing assigned tasks, and also prescribes additional requirements for the monitoring of coal dust in underground mines.

While mining starts 2012 with a zero fatality clean slate (at this writing), it is clear that we are only one tragedy away from having penalties, criminal prosecutions, and pattern of violations all ramped up by Congress. Maintaining an injury and illness-free workplace is the right thing to do, of course. Failure by the few to strive for, and achieve, zero fatalities or taking actions that can be construed as discrimination or retaliation against those who lodge safety concerns can trigger action by our elected officials that will have dire consequences for the mining industry as a whole.

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, Md., a seven-attorney firm focusing on safety, health and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center, and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.

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