February 1, 2009
As President Obama’s picks for mine safety are announced, operators should reflect on their safety strategies for dealing with the new administration.
by Avi Meyerstein and Dan Pubal
Two weeks before the presidential election, then-Senator Barack Obama sent a letter to John Gage, the national president of the American Federation of Government Employees, AFL-CIO. The “failure to ensure mine safety” has been “one of the worst disasters of the Bush administration,” he wrote. “I will appoint a Secretary of Labor who…will protect working Americans and their families… In my Department of Labor, the Administrator of Mine Safety and Health will be an advocate for miners’ safety and health, not for the mining companies’ bottom lines. Our mine safety program will have the staffing and the enforcement tools needed to get the job done.”
After a series of disasters, of course, the Mine Safety and Health Administration (MSHA) already has been breaking enforcement records throughout the last couple years. In December, MSHA announced that for the first time in its history, it completed all mandated regular annual inspections. During the last two years, its budget grew, and it hired hundreds of new enforcement personnel. Its inspectors issued more than 170,000 citations and $162 million in penalties in 2008 alone.
Nonetheless, as the new administration takes shape, it seems from President Obama’s appointments that this enforcement trend is likely to continue and intensify. On Dec. 19, President Obama announced Democratic California Congresswoman Hilda L. Solis as his nominee for Secretary of Labor. Upon accepting the nomination, the four-term congresswoman, whose father was a Teamsters shop steward, said, “As Secretary of Labor, I will work to strengthen our unions and support every American in our nation’s diverse workforce… We also must enforce federal labor laws and strengthen regulations to protect our nation’s workers.” AFL-CIO President John Sweeney praised the choice of Solis and said his union looks forward to working with her as she “charts new territory.” Unions and management alike expect Solis to push for stricter regulations and tougher enforcement.
Joining Rep. Solis in heading up the Department of Labor transition team is the former assistant secretary for Mine Safety and Health under President Clinton, Davitt McAteer. He, along with Joe Main, former head of safety for the United Mine Workers of America, are rumored leading candidates to head up MSHA or be appointed to the Mine Safety and Health Review Commission. Another new MSHA leadership team member with a reputation for a strong enforcement approach is Mike Davis, former MSHA Birmingham district manager for metal/non-metal, who will succeed Bob Friend as a career civil servant deputy assistant secretary.
Based on the makeup of the likely incoming team and President Obama’s campaign promises, 2009 should set records above even 2008 for enforcement actions. The mining community should expect MSHA to issue more citations, levy more fines, increase criminal prosecutions, and issue more closure orders in the coming years. Since 2008 saw MSHA issue its first-ever pattern of violations notice, the expected increase in the number and severity of citations likely means many more such notices are to come, resulting in countless closure orders for the targeted mines. MSHA (and the Occupational Safety and Health Administration) will also face pressure to conduct new rulemaking, including reductions in the coal dust and silica standards.
And, the new 111th Congress may make even broader changes in the law. In 2008, the U.S. House of Representatives passed the Supplemental Mine Improvement and New Emergency Response Act of 2007 (S-MINER). Although the bill died in committee in the Senate, it could re-emerge in the new Congress, where Democrats now are just shy of a filibuster-proof majority. The S-MINER Act, as passed by the House in the 110th Congress, had the support of organized labor, but was opposed intensely by a broad business coalition, including the mining associations, MARG, the National Association of Manufacturers, and the U.S. Chamber of Commerce. Industry representatives were concerned that the bill would have imposed at least 16 new mandates (including mandatory health standard adoptions), provided MSHA with additional enforcement authority to issue withdrawal orders, and restricted the Review Commission’s ability to significantly reduce penalties.
How can a mine, quarry, or cement plant succeed in this new enforcement era, particularly while facing challenging economic times? We suggest that companies rededicate themselves to a proactive, preventive approach to MSHA. There are a few things you can do that will make a big difference. First, you’ll want to take full measure of your current safety and health compliance programs through a comprehensive MSHA-related records audit. The audit should include, at least, the self-inspection records and training records mandated by MSHA and, likely, will reveal what is working and what is not, where programs could be improved, and where good policies may not be followed into good practice. It can also reveal lapses that could lead to severe enforcement penalties and provide an opportunity to correct them before MSHA discovers them.
Second, you should review and, if necessary, expand your training and disciplinary programs for safety rule violations. Of course, the bare minimum is to ensure that all employees are receiving the appropriate mandated safety training at the appropriate times and that your rules are enforced. But, in addition, in a period when many inspectors are systematically issuing more numerous and more serious citations, further training should focus on empowering your employees to prevent citations before they occur, and disciplining them for failure to do so. This means educating your mine site management and personnel about how MSHA enforcement works, how to handle inspections, and how to deal with inspectors appropriately and effectively without making damaging admissions. Among other benefits, this kind of training will minimize admissions of high-penalty, high-risk, “knowing or willful” violations (e.g. “We knew about it, but couldn’t get to it because we were busy loading trucks.”).
Third, key mine site personnel should learn the skills needed to participate in the Alternative Case Resolution Initiative (ACRI) process without outside legal representation. In-depth ACRI training empowers your employees to deal effectively with ACRI-trained MSHA personnel and successfully challenge routine, unjustified citations and penalties, which are growing in amount, severity, future impact, and importance. Prepare your key employees by sending them to an ACRI workshop developed by qualified attorneys and safety consultants, or hold an ACRI workshop for your own personnel.
Daniel J. Pubal and Avidan Meyerstein are associates at the Washington, D.C. office of Patton Boggs LLP. A former OSHA compliance safety and health officer, Pubal defends both MSHA and OSHA administrative health and safety enforcement proceedings. He may be reached via telephone at 202-457-6165 or via e-mail at firstname.lastname@example.org. Meyerstein assists clients with public policy issues and matters involving complex civil and commercial litigation. He may be reached via telephone at 202-457-6623 or via e-mail at email@example.com.
Based on the makeup of the likely incoming team and President Obama’s campaign promises, 2009 should set records above even 2008 for enforcement actions.
These are but a few of the strategies you can employ to minimize unjustified MSHA enforcement actions and penalties. Indeed, with growing regulatory costs and a difficult economy, companies should not wait to take proactive steps.