Join Justin Winter and Ray Perez on February 21st for a complimentary webinar that will provide insight on the new MSHA administration, as its focus shifts from enforcement to education and training. More information and the link to register can be found here. We hope to see you there!
Most of the U.S. has experienced very cold temperatures this winter. MSHA recently issued a Cold Weather Alert. In the alert, it was noted that cold stress can result in hypothermia, frostbite or trench foot.
Some best practices MSHA has suggested to avoid cold stress injuries are:
- Monitor your physical condition and that of your co-workers.
- Wear several layers of clothing for insulation. The first layer should fit snugly against the skin and be made of a nonabsorbent material that wicks away water and keeps skin dry. Clothing should not be too tight as this may restrict movement resulting in a hazardous situation.
- Protect your ears, face, hands and feet in extremely cold or wet weather.
- Wear waterproof and insulated boots and clothing.
- Wear a hat to reduce the loss of body heat from your head.
- Have extra socks, gloves, hats, jacket, blankets, and a change of clothes available in case the weather becomes much worse or your clothes become wet.
- Use radiant heaters in break areas and limit the amount of time outside.
- Carry or make available a thermos of hot liquid.
- Include chemical hot packs in your first aid kit.
- Avoid touching cold metal surfaces with bare skin.
- Maintain adequate hydration and nutritional requirements.
Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act), on January 2, 2018 the U.S. Department of Labor issued a final rule laying out the annual adjustments for inflation to its civil monetary penalties under the various regulations it enforces including MSHA.
MSHA maximum penalties for a violation of a mandatory health or safety standard was increased from $69,417 to $70,834. The penalty conversion table used to convert total penalty points based on size, history, negligence and gravity to a dollar amount was likewise revised. Sixty or fewer points now has a maximum penalty of $132 whereas 140 or more points has a maximum penalty of $70,834.
The minimum penalties for Significant and Substantial violations under Section 104(d)(1) of the Mine Act was raised to $ 2,361 while the minimum penalty for a Withdrawal Order under Section 104(d)(2) increased to $ 4,721. The minimum and maximum penalties for failing to provide timely notification of a death, injury or entrapment of an individual at a mine are now $5,903 and $70,834, respectively.
Failure to correct a violation penalties are now raised from $7,520 to $7,673 for each day during which such failure or violation continues. Miners who willfully violate the mandatory safety standards relating to smoking or the carrying of smoking materials, matches, or lighters are now subject to a civil penalty of not more than $324 for each occurrence of such violation. The maximum civil money penalties for flagrant violations under Section 110(b)(2) was increased by $5,195 from $254,530 to $259,725.
These new penalties are effective January 2, 2018 and will apply to any citations issued through the remainder of 2018.
In recent months, Federal Mine Safety and Health Review Commission judges have been rejecting settlement agreements and denying settlement motions with more frequency due to a lack of justification for proposed citation modifications and penalty reductions. In most cases, settlements between mine operators and the Department of Labor (DOL) were approved by the Administrative Law Judges (ALJs or Judges) with little hesitation due to judicial efficiency. The court’s time was seemingly better spent on cases not likely to end in a settlement so the parties and the ALJ can prepare for hearing. However, the settlement motions filed by the DOL have been denied in many cases this past year due to a lack of justification for such modifications, beyond the vagaries of trial.
There have been numerous cases within the past two months where penalty reductions of over 90% were rejected because the factual justification was found lacking by the ALJ for such significant penalty reductions. Additionally, in cases where the settlement motions disregarded special assessment decisions and penalty figures handed down by MSHA, detailed justification must be provided or the parties risk being fast-tracked for trial. In cases where many citations have been settled prior to hearing, both parties are required to provide fact-based reasons why citation paper has been changed. For example, if a citation has been modified from Significant and Substantial to Not Significant and Substantial, along with a penalty reduction, the settlement document must outline why these changes have been made in order to secure the Judge’s approval. Prior to this year, settlement motions had been granted even if detailed justification was lacking substance. However, the Judges have signaled a new direction with several settlement rejections on the basis of a failure to explain the reasons behind the settlement terms.
Judges have wide discretion to assess civil penalties, including the ability to raise and lower penalties as they see fit. However, Judges also use various criteria when determining appropriate penalties, such as violation history, the mine operator’s size, abatement, and the severity of the alleged violations. It is within these criteria that Judges require a factual basis for settlement agreement modifications. Absent detailed reasons, cases seemingly headed for settlement may see the inside of a courtroom.
The results from the September, 2017, MSHA impact inspections indicate a significant shift in enforcement practices and resources. The data shows that not only has the use of impact inspections in general receded over the past few months, but metal/non-metal mines in particular have received impact inspections at extremely low rates.
In April, 2010, MSHA initiated the impact inspection program as a mechanism through which high violation operators are subject to multi-inspector inspections in between regular inspections for the purpose of conducting an in-depth inspection. The results are publicized in a press-release at month’s end. Specific compliance concerns, or a pattern of significant enforcement activity, historically formed the justification for impact inspections. High penalty citations, 104(d) orders, and other elevated actions have regularly been issued during impact inspections.
The September, 2017, impact inspection results reflect that only one metal/non-metal mine received an impact inspection with a total of 11 citations issued. As a comparison, in September, 2016, five metal/non-metal mines received impact inspections, with a total of 57 citations issued. At no other point in 2017 has less than three metal/non-metal mines been subject to an impact inspection. The trend from 2016 into 2017 has been to shift personnel and financial resources from the coal sector to metal/non-metal due to the closure of many coal operations over the past several years. With increased personnel and monetary resources, the metal/non-metal sector nonetheless decided to conduct only one impact inspection in September, 2017. The coal side saw a relatively stable number of impact inspections throughout 2017, usually around 10-11 each month.
President Trump’s proposed budget sought to increase metal/non-metal funding by $3.4 million and reduce coal funding by $3 million, reflecting declining coal mining figures. Therefore, it is possible that the reduction in impact inspections for metal/non-metal mines, despite stable and possibly increased funding, may indicate that a shift away from enforcement towards compliance assistance has already begun.
On November 15th, 2017, David Zatezalo was confirmed as the new Assistant Secretary of Labor for the Mine Safety and Health Administration. The Senate voted 52 for and 46 against to confirm Mr. Zatezalo, as the vote went along party lines, with Republicans voting in favor of the confirmation. During his confirmation process, Mr. Zatezalo emphasized his intention to expand compliance assistance and educational initiatives, while seeking more streamlined and consistent enforcement efforts. Senator Joe Manchin (D) from Mr. Zatezalo’s home state of West Virginia voted against the confirmation, citing the poor MSHA violation history of the Eagle No. 1 Mine in West Virginia while Mr. Zatezalo was the mine owner’s chairman.
Mr. Zatezalo’s background as a mining executive will be in stark contrast to his predecessor, Joe Main, who led MSHA following his tenure as the President of the United Mine Workers of America. Under Mr. Main’s leadership, MSHA enforcement efforts were emphasized, while compliance assistance and education were implemented less fervently as a mechanism to improve mine safety.
During 2017, there have been multiple metal/non-metal fatalities involving mobile equipment. The most recent fatalgram posted on the MSHA website described an October 17, 2017 fatality involving an operator that was ejected from the cab of a bulldozer and subsequently run over. On October 31, 2017, a mine accident resulted in the death of two miners, including a safety supervisor with more than 25 years of mining experience. The supervisor was driving a van at the time it was run over by a 340 ton haul truck. There were seven other passengers in the van who suffered minor injuries. The occurrence of back to back mobile equipment fatalities in the metal/non-metal sector, one of which involving a veteran safety superintendent and a trainee, may result in enforcement emphasis not only on safety mobile equipment operation practice, but task training as well.
Historically, mobile equipment accidents have been a consistent factor behind metal/non-metal fatalities, and deficient task training has been targeted as a possible contributing factor in the rising number of mining related fatalities in recent years. Consequently, MSHA has been enforcing task training citations at a higher level in recent years. In June, 2017, MSHA issued a letter detailing how less experienced miners suffer injuries at a higher rate than more experienced miners, indicating a problem with sound task training. The recent metal/non-metal mobile equipment fatalities may result in a similar initiative being formalized by the agency. At the very least, mine operators should be prepared for stronger enforcement on task training and mobile equipment issues.
On September 12, 2017, the Mine Safety and Health Administration (MSHA) published two proposed rules seeking to further amend the Examinations of Working Places in Metal and Nonmetal Mines final rule which was published on January 23, 2017. The rule was scheduled to go into effect on May 23, 2017 but MSHA has delayed the effective date several times.
Under the first proposed rule, MSHA sought to further delay the effective date of the final rule to March 2, 2018. On October 5, 2017, MSHA issued a final rule staying the effective date to June 2, 2018. MSHA believes that this extension will offer additional time for the Agency to provide stakeholders training and compliance assistance.
Under the second proposal, MSHA seeks to modify the rule to require a competent person to examine each working place at least once each shift before work begins or as miners begin work in that place for conditions that may adversely affect safety or health. MSHA’s proposed change would allow miners to enter a working place at the same time that the competent person conducts the examination. The examination record would still be required to include descriptions of adverse conditions that are not corrected promptly and the dates of corrective action for these conditions.
This proposed rule would continue to permit mine operators with consecutive shifts or those that operate on a 24-hour, 365-day basis to conduct an examination on the previous shift. MSHA is not making any changes to miner notification or corrective action requirements and is not changing the record retention requirements or the record availability requirements included in the original rule.
MSHA believes these proposed changes will still be as protective as the existing rules while reducing the regulatory burden on mine operators and offering additional flexibility for compliance. MSHA has scheduled four public hearings on this proposed rule and will accept comments to the proposal through November 13, 2017.
The Senate Committee on Health, Education, Labor and Pensions (HELP) questioned Donald Trump’s nominee to be the new head of MSHA, David Zatezalo, about small mine compliance assistance and technological advances within the mine industry during his recent confirmation hearing. In response, Mr. Zatezalo expressed his support for reinstituting an independent Small Mines Office within MSHA. The main purpose of this office, first set up in 2003, is to provide compliance assistance and technical support to small mine operators. Mr. Zatezalo also stated that he would make it a priority to provide access to educational support for small mines, many of which may be more vulnerable to safety hazards and increased injuries and fatalities because they often lack the resources available to larger operators. The small mines office has diminished in importance in recent years, as MSHA focused on enforcement over education and assistance.
Assuming that Mr. Zatezalo is confirmed, the industry can expect more compliance assistance across the board. Mr. Zatezalo’s testimony also suggests the new MSHA administration may shift resources from enforcement to education, training, and technological initiatives. While rulemaking is expected to slow down under Mr. Zatezalo’s tenure, it will be interesting to see how the agency handles current proposed rules in the pipeline, such as the proposed workplace examination rule.
David Zatezalo has been nominated Assistant Secretary for the Mine Safety and Health Administration, the Trump Administration announced on September 2, 2017. This announcement comes on the heels of the appointment of Wayne Palmer as interim Head of MSHA.
Zatezalo is the former CEO of Rhino Resources, a Kentucky-based coal company. He began his career as a miner with Consolidation Coal in 1974. He later served in a management role in the coal segment of American Electrical Power. He holds a degree in mine engineering from West Virginia University.
The aggregate community was lobbying for someone from with a metal/non-metal background to take this role. However, industry professionals expected the Trump Administration to offer this position to a mining professional with coal experience. A significant question will focus on the rulemaking agenda of the agency with Zatezalo heading it. Specifically, what will be the direction of the proposed workplace examination rule, which is due to take effect in October 2, 2017?