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INSIGHTS
Resource for Safety, Health, &
Environmental Law and Crisis Management
July 2006
The Miner Act of 2006 imposes additional liabilities and duties on mine operators, calls for new MSHA regulations that change prior practices, and greatly increases penalties. Patton Boggs is prepared to present seminars around the country to familiarize you with this important legislation, explain how it might affect operations and describe how you can minimize risk.
Should you or your company wish to schedule a Seminar, please contact Henry Chajet hchajet@pattonboggs.com or Mark Savit msavit@pattonboggs.com
The following seminars previously scheduled were CANCELLED:
July 26
Atlanta
September 12
Denver
November 8
St. Louis
2. DOL HIRES MSHA NOMINEE AS CONSULTANT
Frustrated in its efforts to see Richard E. Stickler confirmed as head of MSHA, the Administration has hired the former state regulator and coal industry employee as a consultant on mine safety issues. An MSHA spokesman said the Department of Labor ((DOL) tapped Stickler “to assist with a variety of important issues related to mine safety.” Mr. Stickler’s appointment, effective June 29, is in the Senior Executive Service, and he is at DOL headquarters in Washington, DC as opposed to MSHA headquarters.
Mr. Stickler was nominated as Assistant Secretary for MSHA last September, but organized labor and its allies in Congress opposed the nomination. In March, Senator Robert Byrd (D-WV) placed a hold on the nomination, saying he was unconvinced Mr. Stickler would make mine safety his priority. Last month, the Senate leadership pulled back an attempt to override Sen. Byrd’s grip on the nomination when the needed 60 votes were in doubt.
3. BIGGER PENALTIES FEATURED IN NEW MINER ACT
Other than prior penalty increases, the Miner Act, signed into law last month, adopts the only amendments to the Mine Safety Act since its passage in 1977. The following is a breakdown of the new penalty structure::
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A civil penalty of between $5,000 and $60,000 for failure to notify MSHA within 15 minutes of a fatality, injury or entrapment which has a reasonable potential to cause death;
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A minimum penalty of $2,000 for a Section 104(d)(1) violation (S&S and unwarrantable failure) and a $4,000 minimum for a 104(d)(2) violation (withdrawal order following a withdrawal order under (d)(1) for similar violations);
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Up to $220,000 for a “flagrant violation,” adopting a new MSHA enforcement term;
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Up to $250,000 for willful violation of a mandatory health and safety standard or knowingly violating, failing or refusing to comply with any Section 104 or 107 order. Up to $500,000 for a repeat violation.
The new law gives MSHA until the end of this year to promulgate final regulations regarding penalties. A proposed rule is expected in August. The Act also strengthens MSHA’s power to serve an injunction or restraining order on any operator who refuses or fails to comply with any order or decision, including a civil penalty assessment order.
A provision of the new law affords liability protection to mine rescue team members and their employers during rescue and recovery efforts, and directs MSHA to issue regulations regarding coal mine rescue teams within 18 months.
A new Office of Mine Safety and Health is established within NIOSH, which is charged with launching a competitive grant program for new mine safety technology. The law also establishes an interagency working group to provide a formal means for sharing non-classified technology applicable to mine safety. It also establishes MSHA as the pre-eminent agency when dealing with the families of victims of multiple fatality accidents and with the operator, press and general public.
In an attempt to attract new employees to the mining profession and beef up MSHA’s inspectorate, the bill sets up a scholarship program as well as grants for education and training, with special emphasis on small mines.
Coal Only Provisions
A number of requirements of the new law apply exclusively to coal. Perhaps the most significant deals with emergency response plans.
Coal operators have until mid-August to prepare a written accident response plan that addresses emergency evacuation and maintenance for miners trapped underground. The plan must be updated periodically and must be submitted to MSHA for approval every six months.
The bill stipulates that MSHA’s approval be contingent on the extent to which the plan reflects current commercially available technology. In addition, the plan must also reflect both “the most recent credible scientific research” and improvements in mine safety gained from experience with the new law and other worker safety and health laws.
Specific content requirements of the plan include a provision for a redundant means of communication between the surface and underground, including tracking devices; emergency supplies of breathable air; a maintenance schedule for self-contained self-rescuers (SCSRs); training in SCSR use and in emergency procedures; flame-resistant directional lifelines or equivalent systems in escapeways; and coordination among local emergency response personnel. The Act mandates that within three years, the emergency response plan provide for post-accident communications between the surface and underground using wireless systems and electronic tracking mechanisms.
4. MORE COAL MINE INSPECTORS ON THE WAY
Besides passing the Miner Act, Congress has approved a $35.6 million supplemental appropriation for MSHA and NIOSH for more coal mine inspectors and research activities. The bulk of the money—$25.6 million—is earmarked for additional personnel to replace the more than 200 coal inspectors that have left the agency since 2001. NIOSH gets the rest to spend on promising technological developments, such as communications and tracking devices and improvements in mine rescue.
5. LEGISLATION TARGETS NON-CONSENSUS STANDARDS
Congressman Charlie Norwood (R-GA) is serious about reforming OSHA. Fed up with trying to persuade the DOL to stop the practice of incorporating non-consensus standards into DOL rules, the Republican from Georgia decided to seek legislation and continue to hold Congressional hearings. He introduced H.R. 5554, a bill to amend both the Occupational Safety and Health and the Mine Safety Act to prohibit OSHA and MSHA from incorporations by reference or reliance on any “finding, guideline, standard, limit, rule or regulation” not developed by a nationally-recognized consensus organization. Similar legislation, sponsored by Sens. Mike Enzi (R-WY) and Johnny Isakson (R-GA), is pending in the Senate.
The bills would apply to the American Conference of Governmental Industrial Hygienists (ACGIH), which openly states it is a non-consensus organization and whose occupational exposure limits, called threshold limit values (TLVs®), are automatically incorporated into OSHA’s Hazard Communication (HazCom) Standard. In addition, the ACGIH 2001 TLVs are incorporated into MSHA’s HazCom rule. The bills also likely apply to the International Agency for Research on Cancer (IARC), whose carcinogen findings are incorporated into the two DOL agencies’ HazCom regulations, as well.
The sponsors of the legislation oppose the use of standards not developed by organizations following an open, transparent, deliberative process and that seek consensus by the stakeholders affected by such standards.
Congressman Norwood chairs the House Subcommittee on Workforce Protections, and he called DOL’s attention to these issues at a Subcommittee hearing in 2002. He held two more hearings this year, and used the forum to upbraid the Department for doing nothing to address the issue. As promised, Congressman Norwood called upon new OSHA Assistant Secretary Ed Foulke to address these issues and Foulke endorsed Norwood’s concern for an open, transparent rulemaking process and committed to solving the problem, but he noted that the legislation might be too broad.
In addition to Patton Boggs Partner Henry Chajet, other industry witnesses also testified in support of the bill. They argued that because determinations by ACGIH and IARC are embedded in the two HazCom rules, undue weight is given to these organizations in judicial proceedings. Testifying against the legislation was Dr. David Michaels of George Washington University, who drew an immediate and sharp rebuke from Congressman Norwood when he charged that Patton Boggs was the force behind the legislation.
6. MSHA PROMULGATES DIESEL RULE FOR NON-COAL UNDERGROUND MINERS – MARG, NMA, NSSGA, AND OTHERS SUE
MSHA issued a revised regulation that sets a May 2008 implementation date for a final permissible exposure limit ((PEL) for the carbon content of diesel exhaust particulate matter (DPM) of 160 µg/m³ total carbon (TC), and an interim limit of 350 ug/m3 TC effective on January 20, 2007. Starting on August 16, 2006, the rule also requires, in instances where respirators are mandated due to over-exposures, that affected miners be provided a medical evaluation to determine their ability to wear a respirator. If the evaluation determines they cannot wear a respirator, the rule requires operators to determine the miner’s ability to use a powered air purifying respirator (PAPR) and provide one if the miner obtains clearance, and if not, the rule requires the operator to transfer the miner to an unexposed job at the same rate of pay. Approximately 168 underground mines are affected.
The accelerated PEL provisions jolted mine operators, who had expected MSHA to adopt the 2005 proposal for a 2011 Final Limit effective date, due to MSHA’s finding of a lack of feasibility.
The curren
t PEL is 308 µg/m³ measured as elemental carbon (EC), because the agency has admitted it cannot measure TC. The agency has promised another rulemaking to establish a TC-to-EC conversion ratio for the final limit, even though it also admitted that the ratio of TC to EC to DPM varies in a statistically significant manner. If the 350 TC limit comes next year, MSHA will revert to its previous enforcement practice of calculating the TC limit using EC: for any TC sample that exceeds 350 plus an error factor, multiply the corresponding EC limit by 1.3.The MARG Diesel Coalition, represented by Patton Boggs, was joined by other industry representatives in asking the DC Circuit Court of Appeals to stay the new regulations pending an expedited review by the Court.
Other Requirements
Engineering and/or administrative controls, except worker rotation, continue to be required to achieve compliance with the PEL. However, if these controls are not feasible or fail to reduce exposure to the limit, the option remains for operators to apply for extensions of time in yearly increments to install feasible controls, subject to approval of the District Manager.
If engineering and/or administrative controls fail to bring DPM levels below the limit, then affected miners must be offered respiratory protection. This requires that they first pass a medical evaluation administered by a licensed health care professional that demonstrates they are physically capable of wearing the face-piece. The evaluation and all respiratory protection equipment must be provided at the operator’s expense. If the miner is physically incapable of wearing either a negative-pressure or a positive-pressure respirator, he or she must be transferred to another position in that mine at the same rate of pay. However, wage increases thereafter are to be based on the new work classification. If no other job is available, the miner’s continuing employment is not protected by MSHA regulations.
7. MSHA CALLS UNION LAWSUIT OVER SCSRs “A STUNT”
MSHA has dismissed as “a public stunt” a lawsuit filed by the United Mine Workers on June 8 aimed at requiring the mine safety agency to perform random checks on Self Contained Self Rescuers ((SCSRs). The litigation also seeks to require more realistic miner training on how to use the devices.
An MSHA spokesperson said the agency questions the wisdom of pulling SCSRs from miners at a time when manufacturers are backlogged with orders and recent tests have shown the devices work properly.
8. MINE SAFETY AGENCY ISSUES INTERPRETIVE BULLETIN THAT EXPANDS PENALTIES TO INCLUDE LLC AGENTS
MSHA has issued an interpretive rule, effective July 10, in which it contends that Section 110(c) of the Mine Act (30 U.S.C. 820(c))is applicable to agents of limited liability corporations (LLCs). ;
As stated in the July 10 Federal Register, the effect of the interpretation is that agents of LLCs may be held personally liable under Section 110(c) if they knowingly authorize, order, or carry out a violation of any mandatory health or safety standard under the Mine Act. This liability also extends to any violation of or failure or refusal to comply with any order issued under the Act or any order incorporated in a final decision issued under certain provisions of the Act, according to the notice.
The agency first set forth its opinion in an interpretive bulletin issued May 9. At the time, it sought the opinion of stakeholders. In the July notice, the agency said it received three sets of comments, all of which suggested that MSHA’s interpretation is inconsistent with decisions of both the Federal Mine Safety and Health Review Commission and the courts. Nonetheless, MSHA concluded that “they [commenters] identify no considerations that militate against the conclusion that the Secretary’s interpretation of Section 110(c) is both permissible and reasonable.”
9. COURT RULES FOR MSHA IN OPERATOR-CONTRACTOR LIABILITY CASE
An appeals court has sided with MSHA in its dispute with a coal operator and the Federal Mine Safety and Health Review Commission (Commission) over whether operators should be liable for the safety violations of their contractors. ;
The litigation was launched after MSHA cited Twentymile Coal Co., for six safety violations committed by a contractor working at the operator’s Foidel Creek underground mine in Colorado in 2001. The citations involved equipment used exclusively by the contractor, Precision Excavating, Inc., to perform work on a refuse pile. Precision was also cited.
Twentymile appealed, arguing it was improper to cite it for violations committed by Precision. The ALJ sided with MSHA, and Twentymile appealed to the Commission.
The Commission, in turn, reversed the ALJ’s decision and vacated the citations issued to Twentymile. In doing so, the Commission rejected MSHA’s contention that its exercise of enforcement discretion is unreviewable and concluded that MSHA had abused its discretion in citing Twentymile. MSHA petitioned the U.S. Court of Appeals for the D.C. Circuit for a review.
In a decision released July 7, the appeals court ruled that, because the Mine Act has no meaningful standards against which to judge MSHA’s decisions regarding which party to cite, the Commission generally has no authority to review such decisions. As a result, it granted MSHA’s petition for review and vacated the Commission’s ruling.
The litigation is but the latest in a long-running controversy over operator vs. contractor liability. It remains to be seen if the current ruling lays the matter to rest. For now at least, MSHA enjoys considerable discretion in whom it cites. Nevertheless, defenses against arbitrary MSHA action exist, and Patton Boggs attorneys will assist operators seeking to protect themselves from such liability.
The Patton Boggs E H & S 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 DC, 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 EH&S agency here and in many foreign governments around 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.
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