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MSHA Expands Authority

Maryland Attorney Adele L. Abrams, Esquire told attendees of the recent 2008 Michigan Aggregates Association Annual Meeting, held at Soaring Eagle Casino & Resort in Mt. Pleasant, that the U.S. Mine, Safety and Health Administration (MSHA) is expanding its authority. "Not only are they cracking down hard on mining operations, but they are also trying to expand their turf, and this impacts t...

July 14, 2008

Maryland Attorney Adele L. Abrams, Esquire told attendees of the recent 2008 Michigan Aggregates Association Annual Meeting, held at Soaring Eagle Casino & Resort in Mt. Pleasant, that the U.S. Mine, Safety and Health Administration (MSHA) is expanding its authority.

"Not only are they cracking down hard on mining operations, but they are also trying to expand their turf, and this impacts those of you that have multifaceted operations. This is really cutting edge. Just in the last couple of months I've had cases where MSHA has asserted jurisdiction at asphalt batch plants. I've had three cases where they showed up at off-site maintenance shops that are primarily servicing construction equipment, but they might be repairing mining equipment as well. They are getting into stockpile sales yards that are, maybe, one mile away from any active quarry. These are all areas that they have refrained from inspecting in the past," Abrams said.

"This should give you pause. Because you may be under the Michigan Occupational Safety and Health Administration, but it doesn't mean that an MSHA inspector won't show up at your operation and say 'let me in or I'm going to get an injunction from a U.S. District Court and come back with a U.S. Marshall.' That is happening.

"If these things happen, make sure you tell them that they have overstepped MSHA's jurisdiction. These are cases where you would want to go to an expedited hearing for any citations they issue, because if you let them in and don't make a big deal out of it because they issued a couple of small citations, you will have waived that argument in the future.

"What we're dealing with right now is the fallout from the Sago Mine disaster. The mining industry regulation environment changed forever, I think, on January 2, 2006. That was when the Sago coal mine exploded."

The Miner Health Enhancement Act of 2007 (Public Law 109–236) was signed by President George W. Bush in June 2006. The legislation required rule making action to amend Part 100 penalties. It took effect on April 23, 2007.

"I have never seen a piece of legislation that has as much in it as this bill did go through like this in six months. Quite frankly, I think that the aggregates industry was thrown off-guard by this. So many of the initial hearings focused on underground coal, technology issues, communications, and tracking of people underground, that we thought that all they were going to do was give the underground coal industry a smack. However, President Bush signed this bill and no one looked at the history behind it to find out how it came to be what it is, but the result was that the penalty provision extended to all mines," Abrams said.

Under the Miner Health Enhancement Act of 2007, criminal penalties do not require an injury. Criminal penalties are capped at $250,000 for the first offense and $500,000 for the second offense. The act also:

  • Raises the maximum civil penalty for "flagrant" violations to $220,000
  • Imposes a $2,000 minimum for Section 104(d)(1) citations/orders
  • Imposes a $4,000 minimum for Section 104(d)(2) orders
  • Requires mine operators to make notification within 15 minutes of all incidents/accidents which pose a reasonable risk of death. Civil penalties range from $5,000 to $60,000
  • Gives MSHA the power to request an injunction (shutting down a mine) in cases where the mine has refused to pay a final order MSHA penalty

Criminal penalties include one year in prison; five years in prison if documents are falsified. Abrams explained that checking the wrong box on a training form can be considered a falsified document.

The Supplemental Miner Act is pending in Congress. The House of Representatives passed its version (HR 2768) in January; however, the Senate version (S. 1655) is still pending. The supplemental legislation:

  • Includes additional penalty increases ($500 for non-significant and non-substantial minimum penalties and $1,000 for significant and substantial minimum penalties)
  • Mandates adoption of National Institute for Occupational Safety and Health (NIOSH) Recommended Exposure Limits (RELs), and the Occupational Safety and Health Administration (OSHA) HazCom standard and asbestos standard without any formal rule making (the asbestos provision is now moot)
  • Drops the silica exposure limit from 100 mg/m3 to 50 mg/m3 and also modifies the coal respirable dust standard
  • Would require posting bond for many civil penalty cases in order to have the right to contest citations/orders
  • Would eliminate consideration of all penalties' impacts on the ability to remain in business
  • Would require mine operators to pay contractors' civil penalties if contractors default
  • Would bar attorneys from representing the company and its agents (leaving supervisors without counsel during initial investigations in most cases)
  • Would give MSHA enhanced subpoena power
  • Would add a new $250,000 penalty for a pattern of violations — in addition to underlying civil penalties

An amendment to HR 2768 would put all penalty revenues in a trust fund to finance MSHA inspections.

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