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 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.