By Brent I. Clark and Ilana R. Morady

iStock_000009254156LargeSeyfarth Synopsis: The proposed MSHA rule would require mine operators to examine their mines and to notify miners of dangerous conditions.

MSHA announced today that it has formally submitted a proposed mine examination rule for publication in the June 8, 2016 Federal Register.  81 Fed. Reg. 36818.

The proposed mine examination rule (RIN:1219-AB87) would require metal and nonmetal mine operators to: (1) examine their facilities before a shift begins; (2) explicitly notify miners of any dangerous conditions found; and (3) record their examinations and establish processes to fix hazards.  The current rule allows operators to examine mines during a shift.

MSHA will gather input on this proposed rule in four meetings to be held in Salt Lake City, UT (July 19), Pittsburgh, PA (July 21), Arlington, VA (July 26) and Birmingham, AL (Aug. 4).

Last year, MSHA chief, Joe Main, stated that tightening mine inspection requirements was one of his highest regulatory priorities.

By Brent I. Clark, James L. Curtis, and Craig B. Simonsen

Safety at workThe U.S. Department of Justice (DOJ) and the Department of Labor (DOL) announced last week an expansion of its worker endangerment initiative to address worker safety violations through the use of enhanced criminal fines and penalties.

According to Deputy Attorney General Sally Quillian Yates, “on an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” “Given the troubling statistics on workplace deaths and injuries, the Department of Justice is redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”  Department of Labor Deputy Secretary Chris Lu stated that “today’s announcement demonstrates a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.” DOJ News Release (December 17, 2015).

According to the DOJ, last year it held meetings to explore a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. This culminated in a “decision to consolidate the authorities to pursue worker safety statutes within the Department of Justice’s Environment and Natural Resource Division’s Environmental Crimes Section.”  In a December 17, 2015 Memo, sent to all U.S. Attorneys across the country, Deputy Attorney General Yates urged federal prosecutors to work with the Environmental Crimes Section in pursuing criminal prosecutions for worker endangerment violations.

The worker safety statutes had generally provided for only misdemeanor penalties.  However, prosecutors have now been encouraged to consider utilizing Title 18 and environmental offenses, “which often occur in conjunction with worker safety crimes,” to enhance penalties and increase deterrence.  Specifically, the Memo indicates that prosecutors can “make enforcement meaningful” by charging other serious offenses that often occur in association with OSH Act violations. Examples offered include false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. To facilitate interagency cooperation in implementing this initiative, the DOJ and the DOL have also executed a Memorandum of Understanding on Criminal Prosecutions of Worker Safety Laws (December 17, 2015).

Employers should be leery of these now “added” enforcement authorities. With penalties ranging from five to twenty years of incarceration and significant money fines, criminal enforcement of workplace safety accidents are now significantly more serious.

By James L. Curtis, Meagan Newman, and Ilana R. Morady

Last week we attended the ABA Occupational Safety and Health Law Meeting in Naples, Florida. This included representatives from the OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office.

Tom Galassi, Director, Directorate of Enforcement of OSHA, spoke at length on Wednesday about key enforcement initiatives. Galassi reaffirmed OSHA’s continued focus on using the General Duty Clause to cite employers for hazards such as heat, workplace violence, and chemical exposure below OSHA’s established PELs. He also responded to questions about OSHA’s new “non-mandatory” root cause analysis form the Agency is requesting in connection with injury and illness reporting.

Some OSHA area offices are conducting inspections if employers do not submit the new form, which essentially transforms the form into a mandatory obligation if an employer wants to avoid an inspection. Galassi did not confirm that area offices are treating the “non-mandatory” form differently, but simply stressed that the form is in fact non-mandatory.

Employers who report any injury under OSHA’s new reporting rules should be aware that OSHA is de facto treating its request for root cause analysis as mandatory, even though OSHA has not complied with notice and comment rulemaking procedures. The implications of an employer’s response are serious and should be carefully considered.

More to come from the conference tomorrow.…

By Brent I. Clark, Kerry M. Mohan, and Craig B. Simonsen

The U.S. Mine Safety and Health Administration (MSHA) recently sent three mining operations notices of a pattern of violations (POV) of health or safety standards under section 104(e) of the Federal Mine Safety and Health Act of 1977 (Mine Act).  The MSHA POV screening this year was the first one conducted since MSHA’s revised pattern of violations rule (78 Fed. Reg. 5056 (Jan. 23, 2013)) went into effect on March 25, 2013.

Under the Mine Act, MSHA is authorized to issue a POV notice to mine operators that demonstrate a disregard for the health and safety of miners through a “pattern of significant and substantial” (S&S) violations and employee injuries. A POV notice is reserved for the mines “that pose the greatest risk to the safety of miners.” MSHA defines a significant and substantial violation as one that is reasonably likely to result in a reasonably serious injury or illness.

The Mine Act requires mines that receive POV notices to be issued withdrawal orders –effectively ceasing their mining operations – for all S&S violations. After no mine was placed on POV for the first 33 years after the Mine Act went into effect, these POV notices mark MSHA’s significantly enhanced and aggressive enforcement activities.

Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health, indicated “MSHA’s new POV rule, which we will vigorously enforce, enhances protections for miners and shifts the responsibility for monitoring compliance and taking action to prevent POV enforcement actions to the operator.” Among other things, the new rule shifted responsibility for monitoring compliance to the mine operator, and mandated that operators submit corrective action programs to proactively address issues that could lead to a POV.

Mine operators under this new age of MSHA enforcement need be ever vigilant in monitoring its compliance status and ensuring employees are properly trained to reduce injury rates.

By James L. Curtis and Craig B. Simonsen

The Bureau of Labor Statistics (BLS) recently released its preliminary “Census of Fatal Occupational Injuries.”  The findings show an increase of twenty-three percent in the oil and gas extraction industries, a fourteen percent increase in the mining sector, and a five percent increase in the construction industry.

The BLS Report indicates that 767 workers were killed as a result of violence and other injuries by persons or animals, including 463 homicides and 225 suicides. The total number of fatal work injuries after being struck by objects or equipment increased by seven percent.

As noted above, the number of fatal work injuries in the construction sector increased five percent in 2012. BLS says in its news release that “construction accounted for the highest number of fatal work injuries of any industry sector in 2012.”

Fatal work injuries in the mining sector increased fourteen percent from 2011. The number of fatal work injury cases in oil and gas extraction industries rose in 2012 by twenty-three percent — which represents a series high. This may be attributed to the increasing numbers of employees working in fracking operations. Fatal work injuries in support activities for mining increased nine percent.

In response to the BLS Report, Secretary of Labor Thomas E. Perez said in a press release that “[w]e can and must do better. Job gains in oil and gas and construction have come with more fatalities, and that is unacceptable…. Employers must take job hazards seriously and live up to their legal and moral obligation to send their workers home safe every single day. The Labor Department is committed to preventing these needless deaths, and we will continue to engage with employers to make sure that these fatality numbers go down further. “ Emphasis added.

Employers in these industries, oil and gas, construction, and mining, need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to insure that your safety and health programs, policies, and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

Mine operators and employee interveners lost their joint appeal to U.S. Seventh Circuit Court of Appeals — where the Court agreed with the Commission that MSHA acted within its statutory and constitutional authority to issue document demands for employee medical and personnel records. Big Ridge, Inc., et al., v. Federal Mine Safety and Health Review Commission, et. al., __ F.3d __, Nos.12-2316 & 12-2460 (7th Cir. 2013).

In the underlying case, the Secretary of Labor issued citations alleging violations of 30 C.F.R. § 50.41. Section 50.41 states that:

Upon request by MSHA, an operator shall allow MSHA to inspect and copy information related to an accident, injury or illnesses which MSHA considers relevant and necessary to verify a report of investigation required by §50.11 of this part or relevant and necessary to a determination of compliance with the reporting requirements of this part.

The Administrative Law Judge upheld the MSHA citations and orders upon finding that the operators had violated section 50.41 when they failed to cooperate with a 30 C.F.R. Part 50 audit, by refusing to provide the requested information.  The Commission agreed with the ALJ.

On appeal, the mine operators and miner employees challenged the document demands on several grounds. They contended:

  1. That MSHA did not have the authority to require mine operators to comply with document demands for employee medical and personnel records under the Act or relevant regulations;
  2. That the relevant regulation, 30 C.F.R. § 50.41, is not a reasonable interpretation of the Mine Safety Act which was not properly promulgated;
  3. That the document demands infringed the mine operators’ Fourth Amendment right not to be searched without a warrant;
  4. That the demands violated the miners’ Fourth Amendment privacy rights in their medical records;
  5. That the daily penalties MSHA imposed for failure to comply violated the mine operators’ Fifth Amendment right to due process of law; and
  6. That the demands conflict with a variety of other federal and state laws.

In disposing of all of these contentions, the Court agreed with the Commission that MSHA acted within its statutory and constitutional authority both in demanding information that would permit MSHA to verify the accuracy of mine operators’ injury reports and in issuing citations and monetary penalties when mine operators refused to comply. Specifically, the Court found that “although the Mine Safety Act does not expressly refer to MSHA’s document review power as the power to issue an ‘administrative subpoena,’ the authority the Act confers upon MSHA amounts to an administrative subpoena in substance.”

This case again illustrates the need for employers to carefully interface with MSHA as it interacts with the Company. The need to protect the Company from citations and excessive penalties, and the necessity of protecting the Company’s employees’ privacy, demand cautious, measured responses.

By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

The DC Circuit has just remanded a case to the Mine Safety and Health Review Commission because the Commission failed to explain its departure from its own precedent.

Failure to Contest Proposed Penalties Not Fatal

In this case the mine operator had contested an MSHA citation, but not the related proposed penalties. In Lone Mountain Processing, Inc., 33 FMSHRC Page 2373, No. Kent 2011-1153 (October 11, 2011), the Commission had decided that “Lone Mountain has failed to establish good cause for reopening the proposed penalty assessments.”

The DC Circuit of Appeals, in its remand, notes that “in past orders granting motions to reopen, the Commission has repeatedly stated that the timely challenge to a citation gives a ‘clear’ indication that a mine operator also ‘intend[s] to contest the proposed penalty for that citation’.”  The Court is insistent that the Commission “must address precedent directly on point.”

By Brent I. Clark and Meagan Newman

At an ABA conference in California today, the Deputy Assistant Secretary for OSHA, Jordan Barab, described some of the consequences of the sequester on OSHA’s enforcement activity.

OSHA Enforcement

While it appears that furloughs will not take place, there will be significant impacts on compliance assistance and inspections. The Deputy Assistant Secretary told the audience of safety and health attorneys representing management, organized labor, and government, that he anticipated roughly 1400 fewer compliance consultations and 1200 fewer inspections.  There are also likely to be similar impacts among the state plan OSHA jurisdictions.

MSHA Case Backlog

At the same conference, the Solicitor of Labor, Hon. M. Patricia Smith, described effects of the sequester on efforts to reduce the large backlog of MSHA cases.  As a result of the sequester, the MSHA backlog offices in Arlington and Atlanta will close, and the Denver office faces significant reductions!

By Brent I. Clark and Ilana R. Morady

The Mine Safety and Health Administration has just announced the revision of its final pattern of violations (POV) rule, which makes it easier for the Agency to shut down mines. 78 Fed. Reg. 5056 (January 23, 2013). “The final rule simplifies the existing POV criteria, improves consistency in applying the POV criteria, and more effectively achieves the Mine Act’s statutory intent.”

The new rule will allow MSHA to issue a POV notice to a mine without first issuing a potential POV notice. The rule also allows MSHA to consider orders and citations that are pending on appeal when it evaluates a mine’s safety record. In addition, the final rule will establishes general criteria and procedures that MSHA will use to identify mines that have a pattern of significant and substantial violations.

The final rule restates the statutory requirement that, for mines in POV status, each significant and substantial violation will result in a withdrawal order until a complete inspection finds no significant and substantial violations. The rule also reinforces mine operators’ responsibility for compliance with MSHA safety and health standards and for monitoring the compliance of their own mines.

With this update to the MSHA rules, mine owners and operators must be vigilant about their safety and health training, policies, and procedures to ensure compliance with the law.

By Meagan Newman

Beginning on January 27, 2012 mining companies will have to disclose a broad range of safety violations and other related issues to the U.S. Securities and Exchange Commission (SEC). The SEC issued the final rule on December 21, 2011, implementing the Mine Safety section of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 1503(a) of the Act requires the filing of Form 8-K to disclose orders and notices received from Mine Safety and Health Administration (MSHA) in as few as four business days from receipt of some notices or orders. Although some mine safety disclosures were already required by the Act, the new rule clarifies and expands those mandatory disclosures. The rule also requires that mining companies report the total penalties assessed in the reporting period, even if the company is contesting an assessment.

The rule now specifically requires mine companies to provide mine-by-mine totals for the following:

  • Significant and substantial violations of mandatory health or safety standards under section 104 of the Mine Act for which the operator received a citation from MSHA
  • Orders under section 104(b) of the Mine Act
  • Citations and orders for unwarrantable failure of the mine operator to comply with section 104(d) of the Mine Act
  • Flagrant violations under section 110(b)(2) of the Mine Act
  • Imminent danger orders issued under section 107(a) of the Mine Act
  • The dollar value of proposed assessments from MSHA
  • Notices from MSHA of a pattern of violations or potential to have a pattern of violations under section 104(e) of the Mine Act
  • Pending legal actions before the Federal Mine Safety and Health Review Commission
  • Mining-related fatalities

All affected employers should review their internal record-keeping and SEC reporting processes to ensure the that the correct types of data are being tracked and that notices are filed in a timely manner. The good news for non-mining employers is that when passing the Dodd-Frank Act, Congress ultimately opted not to include a similar requirement under the Occupational Safety Health Act.