Transcript Understanding Civil and Criminal Liability Under the Mine Act

Changes in Federal Safety
Laws
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams P.C.
www.safety-law.com
MINER Act Legislation
MSHA came under scrutiny because
of Sago and other recent mine
disasters.
Sen. Enzi’s MINER Act signed by
President Bush in June 2006. Public
Law 109-236.
Required rulemaking action to amend
Part 100 penalties completed 3/22/07
and took effect on 4/23/07.
MINER Act – UG Provisions
Requires each UG coal mine to make available
two experienced rescue teams capable of a one
hour response time – may extend to M/NM
Requires each covered UG coal mine to develop
and continuously update written emergency
response plan
Require each UG coal mine's emergency response plan
to be continuously reviewed, updated and re-certified by
MSHA every six months
Promotes use of equipment and technology that is
currently commercially available
Direct the Secretary of Labor to require, within three
years, wireless two-way communications and an
electronic tracking system
MINER Act Penalties – All Mines
Raises the criminal penalty cap to $250,000 for
first offenses and $500,000 for second offenses
Raises the maximum civil penalty for “flagrant”
violations to $220,000
Imposes $2,000 minimum for Sec. 104(d)(1)
citations/orders
Imposes $4,000 minimum for Sec. 104(d)(2)
orders
Require mine operators to make notification of all
incidents/accidents which pose a reasonable risk
of death within 15 minutes – civil penalties from
$5,000 to $60,000
Give MSHA the power to request an injunction
(shutting down a mine) in cases where the mine
has refused to pay a final order MSHA penalty
Other MINER Act Provisions
Establishes a competitive grant program for new
mine safety technology to be administered by
NIOSH;
Establishes an interagency working group to share
nonclassified technology applicable to mine safety;
Creates a scholarship program available to miners
and those who wish to become miners and MSHA
enforcement staff to head off an anticipated
shortage in trained and experienced coal miners
and MSHA enforcement staff; and,
Establishes the Sago Mine Safety Grants program
to provide training grants to better identify, avoid
and prevent unsafe working conditions in and
around the mines.
Other MSHA Reform Bills
S-MINER Act and Miner Health Enhancement Act
of 2007 (HR 2768 and 2769)under consideration
in House (consolidated S.1655 in Senate)
Hearings held in July, September and October (House
and Senate)
Markup in House scheduled for 10/11/07
Includes additional penalty increases
Mandates adoption of NIOSH RELs, OSHA HazCom
standard and asbestos standard without any formal
rulemaking
Drops silica exposure limit from 100 mg/m3 to 50 mg/m3
and also modifies coal respirable dust standard
Other MSHA Reform Bills
Would require posting bond for all civil penalties in order to
have right to contest citations/orders
Would require mine operators to pay contractors’ civil
penalties if contractors default
Would bar attorneys from representing both company and its
agents (leaving supervisors without counsel during initial
investigations in most cases)
Would give MSHA enhanced subpoena power (increasing
“fishing expeditions”)
Would further modify Part 50 reporting requirements and
Part 100 penalties
Would add new $250,000 penalty for Pattern of Violations –
on top of underlying civil penalties!
Part 100 Rulemaking
MSHA final rule modifies Part 100
Rule implements “MINER Act”
requirements but goes far beyond
statutory requirements.
Does away with single penalty
assessment for non-S&S citations
Raises maximum civil penalty to
$220,000 for flagrant violations
Sets new minimum penalty of $112
Part 100 Rulemaking
MSHA’s rule includes:
Implementation of the MINER Act
penalties
Reduction in the good faith adjustment
from 30% to 10%
Modification of informal conference
requirements – must now request in
writing within 10 days and provide
statement of why citations/order being
challenged.
Part 100 Rulemaking
MSHA has modified the penalty point
criteria for regular assessments by:
Raising points for corporate size
Raising points for various gravity and
negligence categories
Raising points for history of violations
(and changing the “lookback” period
from 24 mo. to 15 mo.)
Part 100 Rulemaking
The rule adds a new category of
points for “repeat violations” of same
standard within preceding 15 mo.
Uses a RPID criteria for mine
operators with more than 10 violations
of same standard
Repeat violations for contractors start
with 6 in 15-month period
Part 100 Rulemaking
The rule also eliminates all criteria for
special assessments, giving MSHA
unfettered discretion to specially assess
any citations/orders it chooses.
MSHA will use citations/order already
finalized to trigger this despite statement
that rule would not be “retroactive.”
MSHA has announced that it will apply new
“Flagrant” penalties to citations issued in 2006.
Flagrant Violation Policy
Under the MINER Act, a civil penalty of up to $220,000 may be
assessed for a “flagrant violation.” The MINER Act defines flagrant
violation as:
...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, or reasonably could have been
expected to cause, death or serious bodily injury.
Procedure Instruction Letter (I06-III-04, 10/26/06) instructs that, to
use the “flagrant” findings for violations which result from “reckless
failure to make reasonable efforts to eliminate a known violation,”
the citation/order must be significant and substantial (S&S), have a
gravity rating of at least “permanently disabling” and a negligence
rating of either high (104D “unwarrantable failure”) or “reckless
disregard.
For those that are the result of repeated failure to make reasonable
efforts to eliminate a known violation, the citation/order must meet
the same criteria above, plus have at least two prior “unwarrantable
failure” violations of the same health or safety standard within the
preceding 15 months.
Pattern of Violations
MSHA urged by Congress to make greater
use of its POV powers under 30 CFR Part
104 and Section 104(e) of Mine Act.
Section 104(e) states:
If an operator has a pattern of violations of
mandatory health or safety standards in the
coal or other mine which are of such nature as
could have significantly and substantially
contributed to the cause and effect of coal or
other mine health or safety hazards, he shall be
given written notice that such pattern exists. 30
U.S.C. ' 814(e) (emphasis added).
Pattern of Violations
A pattern notice under section 104(e) is based on the number of
prior S&S citations the operator has received under section 104(a).
Criteria considered include -(1) A history of repeated significant and substantial violations of a
particular standard;
(2) A history of repeated significant and substantial violations of
standards related to the same hazard; or
(3) A history of repeated significant and substantial violations
caused by unwarrantable failure to comply.
(b) Only citations and orders issued after October 1, 1990, and that
have become final shall be used to identify mines with a potential
pattern of violations under this section.
Pattern of Violations
What gets counted?
The Pattern of Violations final rule (codified at 30 CFR
Part 104) does not specify the period of a mine's
compliance history to be examined during the initial
screening, but MSHA policy “looks back” 24 mo.
New MSHA policy also considers pending citations and
considers I/I rates in selecting mines for POV notice
The legislative history of Section 104(e) of the Federal
Mine Safety and Health Act of 1977 does not support a
distinction between large and small operations in
establishing a pattern.
Both 30 CFR Part 104 and new MSHA policy avoid
triggering the pattern notice based on a predetermined
number of violations of particular standards.
Pattern of Violations
Consequences: Each additional S & S violation
would mean another withdrawal order.
The violation need not involve high negligence or
imminent danger in order to trigger withdrawal order!
Under S. 2768, would close entire mine (not just area or
equipment at issue)
Termination of a section 104(e)(1) of the Act
pattern of violations notice shall occur when an
inspection of the entire mine by MSHA finds no
significant and substantial violations or if no
withdrawal order is issued by MSHA in accordance
with section 104(e)(1) of the Act within 90 days of
the issuance of the pattern notice.
Twentymile Coal Litigation
Twentymile Coal decision (FMSHRC
3/05) – limited multi-employer citation
powers to situations where prime
employer had “significant
involvement” in contractor activities.
Decision was appealed by MSHA to
US Court of Appeals and ruling issued
July 2006 in MSHA’s favor.
Twentymile Coal Litigation
USCA-DC held:
MSHA has unreviewable discretion to cite the
production operator, contractor or both
Infers an obligation for production operators to ensure
safety of third party’s equipment
MSHA’s multi-employer policy remains intact
Decision could be extrapolated to OSHAregulated industries because based upon 1990
S. Ct. decision in Martin v. OSHRC
Where commission and agency differ on
interpretation of a rule, agency wins if interpretation is
“reasonable” construction of statutory power.
QUESTIONS?
Adele L. Abrams, Esq., CMSP
301-595-3520
[email protected]
www.safety-law.com