June 20, 2007

The Miner Health Enhancement Act of 2007 would:       

• Require MSHA to adopt NIOSH’s current Recommended Exposure Limits as MSHA’s Permissible Exposure Limits.

• Require NIOSH to submit all new RELs to MSHA at least once a year, which MSHA must then adopt as its PELs for the mining industry.

• Require MSHA to “apply the provisions of the interim final” HazCom rule, instead of final HazCom rule, to mine operators.

• Require MSHA to adopt OSHA's PEL for asbestos. 

Rep. Miller and Sen. Kennedy have aimed these bills at the entire mining industry.  If enacted, the bills would have a significant impact on every mine and mine operator in the Nation.

MSHA Pattern of Violations

In other news last week, MSHA’s Acting Assistant Secretary Richard Stickler issued a press release (see below) regarding its warning to eight mines exhibiting potential patterns of significant and substantial violations.   

In years past, notices were issued to mine sites without press releases that harm a company’s reputation before it can prove that it is not a Pattern offender; a result we’ve achieved for clients by demonstrating the potential pattern notice was not warranted. Unfortunately, the new MSHA tactic risks undeserved community, employee, press and stockholder relations problems.

Under the Pattern regulations, notified mines have the opportunity to demonstrate to the MSHA District Manager why they are not Pattern mines and/or to improve their performance and avoid a Pattern designation. A Pattern designation produces massive production interruptions because it results in every “significant and substantial” (S&S) violation issued as a closure order, until the entire mine undergoes an inspection without any “S&S” violations, an unlikely event given that MSHA issues tens of thousands S&S violations each year and inspects many mines continuously.

Moreover, Secretary Stickler issued new guidelines, set forth below in the press story, to create a statistical analysis procedure for determining Pattern mines (and likely increase the ease and number of Pattern enforcement cases). Patton Boggs will analyze the guidelines, incorporate them into our MSHA handbook, and provide further information soon, including any grounds for challenging the legality of guidelines.

With the current MSHA leadership and Congressional pressure for enforcement continuing, new proactive programs could potentially prevent Pattern enforcement. Such programs can include analysis of a mine’s historical citation performance under the new guidelines, and implementation of combined training, self-inspection, and employee disciplinary programs aimed at the prevention of the most common S&S violations at a particular site.

We also encourage the challenge of all questionable MSHA enforcement actions to prevent their consideration in the Pattern analysis unless and until they become final orders of the Review Commission.

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MSHA Warns Eight Mines about Repeat Violations
By TIM HUBER AP Business Writer
© 2007 The Associated Press

CHARLESTON, W.Va. — The federal Mine Safety and Health Administration said Thursday it has warned eight mining operations across the country that they may face sanctions as repeat violators of health and safety rules.  

The list includes coal operations in West Virginia, Kentucky and Alabama as well as a quarry in California and an iron ore mine in Michigan. 

“The purpose of these letters is to put mine operators on notice about the repercussions they face if they repeatedly disregard mine safety and health regulations,” MSHA director Richard Stickler said. ”The ultimate goal is to restore effective safe and healthy conditions at these mines.” 

MSHA said it concluded each of the operations has a pattern of safety and health violations based on the last eight quarters. The agency did not specify what the violations were. 

The notification is the first step toward what could be temporary shutdowns of the operations. Each has 90 days to significantly reduce the rate of violations while operating under what MSHA said will be close monitoring. If the rate improves enough, MSHA said it won’t issue a notice of a pattern of violations. 

But if the operations fail to improve enough, MSHA said it can shut them down until problems are eliminated. 

Two of the West Virginia operations are controlled by Richmond, Va.-based Massey Energy Co. MSHA identified them as the Chess Processing plant and the Black King I North Portal underground mine in Boone County. A Massey spokesman did not immediately return a call Thursday. 

MSHA also notified Peachtree Ridge Mining’s Eagle No. 1 mine in Raleigh County. A man who answered at Peachtree declined to comment. 

MSHA identified the Kentucky operations as James River Coal Co.’s No. 77 mine in Perry County and Left Fork Mining's Straight Creek No. 1 in Bell County. A James River spokeswoman did not immediately return a call Thursday. A man who answered at the Straight Creek mine declined to comment. 

MSHA also sent notices to the Oak Grove Mine in Jefferson County, Alabama, and two non-coal operations: Oro Grande Quarry in San Bernadino, Calif., and Tilden Mining’s iron ore mine in Marquette, Mich. 

Cleveland-Cliffs spokesman Dale Hemmila said Thursday evening that he had not seen the MHSA notification, “and until I see it the company just can’t comment.” 

A spokeswoman for Oak Grove’s parent company, Canonsburg, Pa.-based PinnOak Resources, declined to comment. A spokesman for Oro Grand’s parent company, Texas Industries Inc., did not immediately return a call.

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MSHA Pattern of Violations Screening Criteria and Scoring Model - 2007

A computer-generated report is run that retrieves data for the most recent 24 months available for every mine under MSHA’s jurisdiction. Mines currently in an “Active” status (on the date the report is generated) are reviewed to determine if a potential Pattern of Violations may exist.

Initial Screening Criteria (30 CFR §104.2)

The following screening criteria are used to perform the initial screening required under 30 CFR §104.2.  Mines meeting all of the following criteria are further screened to identify mines meeting potential Pattern of Violations criteria listed in 30 CFR §104.3: 

• At least ten S&S Citations/Orders, at mines classified as Surface and Facility, issued during the 24 month review period.

• At least twenty S&S Citations/Orders, at mines classified as Underground, issued during the 24 month review period.

• At least two “elevated enforcement” actions, [i.e. type action is 104 (b), 104 (d) or 107(a)], issued during the most recent 12 months of the review period.

• The ratio of S&S Citation/Orders issued in the most recent 12 months of the review period to the number of S&S Citations/Orders issued during the previous 12 months of the review is 70% or greater.

• The mines’ rate of S&S Citations/Orders issued per 100 inspection hours during the 24 month review period is equal to or greater than 125% of the National rate of S&S Citations/Orders issued per 100 inspection hours for that mine type and classification.

• # of S&S Citation/Orders Issued per 100 inspection hours during the last two quarters is greater than the Industry Average for this mine type and classification.  OR  # elevated enforcement issuances per 100 inspection hours during the last two quarters is greater than the Industry Average for this mine type and classification.

The information used to screen mines includes a raw weighted score for each operation meeting the above criteria as follows 

1. The number of S&S Final Orders per 100 Inspection Hrs. in the 24 month review period times the weight assigned to this factor; plus

2. the number of 104(b) (failure to abate) orders issued per 100 Inspection Hrs. for failure to abate an S&S issuance that that became final during the period under consideration and multiplying by a factor of 5; plus

3. the number of 104(d) (unwarrantable failure) citations and orders issued per 100 Inspection Hrs. that became final during the period under consideration and multiplying by a factor of 5; plus

4. the number of 107(a) (imminent danger) orders issued per 100 Inspection Hrs. during the period under consideration and multiplying by a factor of 5.

This raw weighted score is increased by:

5. 5%-20% for operations with injury rates above the national average for the same mine type and industry grouping as follows: 

 Degree 1-4 Injury Rate Multipliers      

6. 5%-20% for operations with injury severity rates (number of days lost X 200,000 divided by the total work hours reported) above the national average for the same mine type and industry grouping as follows:

 Degree 1-4 Injury Severity Rate Multipliers    

Pattern Criteria Screening (30 CFR §104.3)

The following criteria are used to perform the pattern criteria screening required under 30 CFR §104.3: 

• A minimum of two “elevated enforcement” final orders of the Commission, [i.e. type action is 104 (b), 104 (d) or 107(a)] during the 24 month review period.

• At least one 104 (d) final order of the Commission during the 24 month review period.

• At least ten S&S Citations/Orders, at mines classified as Surface and Facility, that are final orders of the Commission during the 24 month review period.

• At least twenty S&S Citations/Orders, at mines classified as Underground, that are final orders of the Commission during the 24 month review period.

• At least five S&S Citations of the same standard that became final orders of the Commission during the most recent 12 months.

The raw weighted score described above under Initial Screening Criteria (30 CFR §104.2) is increased by 5%-20% for operations with violations per 100 inspection hours (VPIH) above the 24-month national average for the same mine type and industry grouping as follows:

VPIH Multipliers          

The final weighted score must be greater than or equal to the average weighted score for the same type and industry classification.  Operations with the highest weighted score are identified for issuance of a potential Pattern of Violation Notice. 

For additional information and a legal analysis of the provisions of either new bills as well as analysis of the pattern of violations and penalty assessments, please contact Henry Chajet (hchajet@pattonboggs.com) 202.457.6511, or Mark Savit (msavit@pattonboggs.com) 303.894.6117. 

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The Patton Boggs Health and Safety Law Group consists of attorneys who have resolved client problems in environmental, energy, natural resource, and safety and health law since the late 1960s. With lawyers in Washington, D.C., Alaska, Colorado, Texas, New Jersey, New York, and Northern Virginia, we have experience with EPA, OSHA, MSHA, NIOSH, DOT, OPS, Coast Guard, NTSB, FAA, FDA, CSP, the Chemical Safety Board, and almost every other federal and state government health and safety agency in the United States and throughout the world. We speak a variety of languages; have backgrounds in business, science, engineering, industry, and government; and combine preventive law counseling with courtroom and lobbying expertise to achieve results. For more information go to: http://www.pattonboggs.com or contact Henry Chajet (hchajet@pattonboggs.com) at 202-457-6511, Mark Savit (msavit@pattonboggs.com) at 202-457-5269, Cole Wist (cwist@pattonboggs.com) at 303-894-6159, John Austin (jaustin@pattonboggs.com) at 202-457-6167 or Willa Perlmutter (wperlmutter@pattonboggs.com) at 202-457-5223.

Important Note: This ALERT does not constitute legal advice and counsel should be consulted regarding specific factual situations which will determine the compliance advice applicable to any particular question regarding the subject matter. If you would like additional information or advice and counsel on training, compliance or audits, please let us know. 

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