April 1, 2008
Speculation of increased MSHA enforcement actions and increased penalties comes to pass.
by Daniel J. Pubal
Following the passage of the Mine Improvement and New Emergency Response Act of 2006 (the MINER Act), we warned in these pages that there would be an avalanche of citations issued by the Mine Safety and Health Administration (MSHA) and massive increases in the size of penalties assessed. Those predictions are coming true.
It is becoming more necessary from a business standpoint — and more economically feasible — to challenge citations that are wrong, including those with exaggerated allegations of degree of seriousness, overzealous classifications of being significant and substantial, and irresponsible designation as unwarrantable failures.
One of the pieces of evidence is the number of cases being filed with the Federal Mine Safety and Health Review Commission (the Commission). The Commission has announced that it will publish weekly tallies of newly filed cases to advise the public of the dramatic increase in the number of cases pending before the Commission since the passage of the MINER Act and the revision of MSHA’s civil penalty regulations. During fiscal years 2005 and 2006, the Commission received an average of 2,500 new cases per year. In fiscal year 2007, that number rose to 4,097, and during the first 4-1/2 months of fiscal year 2008 (October 2007 through mid-February 2008), the Commission has received nearly 2,600 cases. If contest filings continue at the current rate, the Commission could receive more than 8,000 cases in fiscal year 2008, or well over 850 cases per judge in the Commission’s Office of Administrative Law Judges.
On Jan. 10, 2008, Acting Assistant Secretary of Labor Richard E. Stickler stated: “Right after the President signed the [MINER] Act, MSHA immediately issued policies to propose increased minimum penalties for unwarrantable failure and immediate accident notification violations. In November 2006, we implemented the MINER Act provisions for flagrant violations.” By Jan. 1, 2008, 15 flagrant violations had been assessed by MSHA; with 22 more under review. Four flagrant violations have now been assessed the maximum penalty of $220,000. Stickler quantified MSHA’s recent dramatic penalty increase as follows: “The amount of penalties we assessed increased over 100 percent last year. In 2006, assessed penalties totaled $35 million; in 2007, assessed penalties totaled $74.6 million. I believe that this increased penalty structure will provide a greater incentive for operators to ensure that safety and health laws are followed, which will result in safer working conditions for our miners.”
Commission Chairman Michael F. Duffy stated: “[M]iners, operators, and MSHA need to be advised that if the current trend continues, the Commission may not be able to meet certain performance guidelines we had previously set regarding the time it takes for a case to reach decision. That is why we have taken this step to keep the public apprised of this mounting challenge.”
Based on Department of Labor announcements, Chairman Duffy predicts substantial numbers of inspectors and solicitors will be added to the ranks of the Labor Department to handle mine safety and health inspections and litigation. The Commission’s workload will continue to expand, and more cases will proceed to hearing.
Mine operators are clearly in the path of MSHA’s enforcement avalanche. That avalanche is rapidly growing in magnitude and is now swiftly gaining momentum. Inspections are a given, as are more numerous citations. Their increased gravity and increased penalty amounts are already apparent.
Although many operators want to work amicably with the agency, more operators than ever will be forced to vigorously challenge agency enforcement actions. The current enforcement climate necessitates the dedication of more resources to safety and health compliance, and a careful examination of the facts surrounding every citation or order to determine whether it should challenged.
Daniel J. Pubal is an associate at Patton Boggs LLP’s Washington, D.C., office where he advises clients on environmental, health, and safety issues, as well as litigation and dispute resolution. Pubal may be reached via phone at 202-457-6165 or via e-mail at firstname.lastname@example.org.