Miner Safety & Health Act of 2010

Miner Safety & Health Act of 2010 Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams PC www.safety-law.com

Overview • S-MINER Act passed House of Representatives in 2008, no action in Senate • April 2010 – Massey Big Branch mine disaster sparks oversight hearings of MSHA enforcement • IG report that MSHA failed to use Pattern of Violation powers appropriately • 17,000-case backlog at FMSHRC due to: • Record-high MSHA penalties • Increased Sec. 104(d) actions and personal liability • Concerns about Pattern of Violations impact

HR 5663 • Introduced in House on July 1st, with 17 co-sponsors • Purpose: “To improve compliance with mine and occupational safety and health laws, empower workers to raise safety concerns, prevent future mine and other workplace tragedies, establish rights of families of victims of workplace accidents, and for other purposes.” • Senate companion bill is ready but Sen. Harkin wants bipartisan introduction/support • First hearing is July 13; House markup could occur July 15, with floor vote prior to August recess

Main MSHA Provisions • Gives NIOSH-headed panel independent accident investigation role in major disasters (3+ deaths or other factors warranting special investigation in view of DHHS; • Unlimited subpoena power during accident investigations AND routine inspections, to compel production of documents and testimony of witnesses “without the presence, involvement, or knowledge of the operator or the operator’s agents or attorneys” (but does not preclude presence of individual’s “personal attorney”); • Provides for inspections on all days and hours to ensure all mining shifts are subject to inspections; • Requires production operator to keep injury/illness records for all miners at mine, regardless of whether their employees;

Main MSHA Provisions • During investigations, no attorney shall represent both the operator of a mine and any other individual, unless such individual has knowingly and voluntarily waived all actual and reasonably foreseeable conflicts of interest resulting from such representation (and MSHA will take “necessary steps” to verify voluntary nature of waiver) … and if MSHA perceives conflict, can petition US Dist Ct to disqualify attorney; • Makes all citations presumptively S&S where alleged violation “is of such nature as could significantly and substantially contribute to the cause and effect of a safety or health hazard if there is a reasonable possibility that such violation could result in injury, illness, or death.’’ • MSHA can revoke previously approved plans if it finds circumstances are changed or plan approval was based on inaccurate information, and immediately cause miners to be withdrawn from mine until MSHA approves new plan … Secretary’s decision to revoke plan must be affirmed by court unless it is found to be “arbitrary, capricious and an abuse of discretion”;

Main MSHA Provisions • Increase of S&S penalty to maximum $150,000 (not including flagrant violations, which still trigger $220,000 max) • Doubling of penalties for mines under Pattern of Violations; • New mandatory penalties for Sec. 105(c) whistleblower violations: $10,000 min to $100,000 max; • New mandates for “current” certification requirements for any tasks that require certification by MSHA (e.g., training, UG mine inspection): fees will be charged for certification, and permitting a non-currently-certified person to perform tasks is automatic Unwarrantable Failure violation; • Expands definition of “mine operator” to one who controls the mine by making or having the authority to make management or operational decisions that affect, directly or indirectly, the health or safety at such mine;

Agent Penalty Provisions • Any director, officer, or agent of such operator who knowingly authorized, ordered, or carried out a violation, failure, or refusal, or any policy or practice that contributed to the occurrence of such violation, failure, or refusal, shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under Sec. 110(c); • Criminal standard changed from “willful” to “knowing”; • Criminal monetary penalty max raised from $250K to $1 million; • Criminal penalty for knowing violations increased to 5 yrs imprisonment (current is max of 1 yr) – now a felony; • Criminal penalty for retaliation against whistleblowers (Sec. 105(c)) of $250K penalty and 10 yrs imprisonment; • Advance notice of inspection: $250K penalty and 5 yrs imprisonment.

More MSHA Provisions • FMSHRC cannot lower penalties below MSHA penalty point criteria except in “extraordinary” circumstances; • Penalty for contested citations will accrue interest from date of contest (compounded daily) until finally adjudicated, and interest continues at 8% from 30 days after judgment until paid; • If payment is more than 180 days delinquent, MSHA will issue withdrawal order and remove miners from mine until paid in full or pursuant to payment plan;

Enhanced Whistleblower Rights • Codifies work refusal rights of miners; • Extends Statute of Limitations for filing whistleblower complaint from 60 to 180 days; • Extends temporary reinstatement rights to claims brought by miners pro se until complaint finally adjudicated; • Expands remedies from “make whole” to include “exemplary damages”;

More MSHA Provisions • If a mine is closed by an order issued under section 103, 104, 107, 108, or 110, all miners who are idled by such order shall be entitled, regardless of the result of any review of such order, to full compensation by the operator at their regular rates of pay and in accordance with their regular schedules of pay for the entire period for which they are idled; • If mine operator closes a mine in advance of an order, miners still entitled to compensation as above; • Provisions (limited to UG Coal) bar firing of miners except for “reasonable, job-related grounds” once miner has completed a probationary period of not more than 6 months; • Violation of the above permits miner to file suit in US District Court and receive back pay, reinstatement, other make-whole remedies and attorney fees; • Expansion of annual refresher training to 9 hours, with one hour devoted to miners’ rights provided by an MSHA rep or a third-party approved trainer; • MSHA can mandate additional training for individual mines based on serious accidents, or elevated incidence or citation rates; and, • Variety of mandates to establish new coal mine standards (rock dusting, atmospheric monitoring, examinations etc.).

Pattern of Violation Expansion • Rewrites §104(e) to codify an expanded pattern of violations to include: • citations for significant and substantial violations, • citations and withdrawal orders for unwarrantable failure to comply, • citations for flagrant violations, • withdrawal orders issued under any other section of the Act, • accidents, injuries or illnesses or • a pattern consisting of any combination of citations, orders, accidents, injuries or illnesses; • Establishes procedures for placing a mine on pattern status, including: • notifying the operator, • issuing a withdrawal order, • issuing a remediation order and • requiring that mandated regular inspections increase from four to eight per year for underground mines and from two to four for surface mines;

Pattern of Violations Expansion • Notice advising an operator that they face potential placement in pattern status shall not be required for issuing a withdrawal order; • Provides that a remediation order may require specific training, implementation of a health and safety management program; employment of personnel, specific inspection, recordkeeping and reporting requirements, and other requirements to ensure compliance and protect the safety and health of miners; • Provisions for the modification and consequences of failure to comply with a remediation order; extensions of deadlines; conditions for lifting a withdrawal order; provisions for the Secretary to evaluate the performance of a mine on pattern status, including rate of citations for significant and substantial violations, accident and injury rates, and absence of enhanced enforcement citations or orders; • Provisions for reissuing withdrawal orders; performance benchmarks for terminating pattern status, including rate of citations for significant and substantial violations, accident and injury rates, and the absence of enforced enforcement citations or orders;

Pattern of Violations Expansion • Provisions for expedited review; • Provisions requiring the Secretary to promulgate regulations implementing the statutory requirements; • Establishment of a public electronic database containing data used to determine pattern status; and • Provisions for assessing and collecting fees from mines on pattern status for the additional inspections required by that status.

OSHA Provisions • Enhanced whistleblower rights under Section 11(c) of OSH Act: • Expands Statute of limitations from 30 days to 180 days • Provisions for de novo action in US District Ct. by complainant if ALJ does not rule within 90 days • Criminal penalties for death (10 yr) or serious bodily injury (5 yr) of individuals arising from “knowing” violation, plus $250,000 fine; • Serious injuries include: a substantial risk of death; protracted unconsciousness; protracted and obvious physical disfigurement; protracted loss or impairment, either temporary or permanent, of the function of a bodily member, organ, or mental faculty • Requires immediate abatement of alleged violations classified as serious, repeat or willful, even if contested; • Victim’s rights provisions (See PAW Act, HR 2067)

OSHA Penalty Provisions • Raises maximum civil penalty from $70,000 to $120,000 • Raises minimum penalty for willful or repeated violations from $5,000 to $8,000 • In fatality cases, mandatory penalties of $50,000 to $250,000 for willful violations, and $20,000 to $50,000 for serious violations (lesser limits for employers with 25 or fewer employees) • New maximum penalty for other “serious” violations of $12,000 (up from $7,000) • Pre-judgment interest from date of contest until final adjudication

Questions? Adele L. Abrams, Esq., CMSP safetylawyer@aol.com 301-595-3520

Miner Safety & Health Act of 2010