THE MINER SAFETY AND HEALTH ACT OF 2010 MOVES FROM COMMITTEE TO THE HOUSE FLOOR

For clients and friends of Jackson Kelly PLLC

Volume 6,  Number 18

©2010 Jackson Kelly PLLC

The House Committee on Education and Labor approved the “Robert C. Byrd Miner Safety and Health Act of 2010” in a strict party-line vote of 30 to 17 on July 21, 2010. This vote sends the bill to the House floor where it is expected to be acted upon next week. The proposed legislation also makes changes to the Occupational Safety and Health Act.

The proposed legislation substantially tracks the “discussion draft” previously circulated by Chairman George Miller. A couple of the key amendments include limiting the legislation’s application to underground coal mines, their associated surface areas, and to underground metal and nonmetal mines classified as “gassy”. “Gassy” is defined as a “mine, tunnel, or other underground workings in which a flammable mixture has been ignited, or has been found with a permissible flame safety lamp, or has been determined by air analysis to contain .25% or more (by volume) of methane in any open workings when tested at a point not less than 12 inches from the roof, face of rib.” In addition, the legislation does not change the definition of the term “significant and substantial” as developed in litigation under the 1977 Mine Act.

A copy of the proposed legislation can be found at the House Committee’s website at:

http://edlabor.house.gov/documents/111/pdf/markup/FC/HR5663-MinerSafetyandHealthActof2010/MillerSubstitute.pdf

The following provisions would be applicable to all underground coal mines and to “gassy” underground metal and nonmetal mines:

Pattern of Violations

• Expands S&S violations to include not only mandatory standards but violations of any part of the Mine Act and any regulation promulgated under the Mine Act.
• Allows MSHA to declare that a mine has a pattern of violations and to immediately issue an order of withdrawal. Advance notice of the potential finding is not required.
• Authorizes MSHA to issue a “remediation order” to any mine placed in a pattern status requiring that additional training, personnel, records, or programs be implemented. Failure to comply with the terms of the “remediation order” can result in the reinstatement of the order of withdrawal previously issued.
• Doubles the minimum number of required annual inspections for any mine placed on a pattern of violations. Mine operators will be required to pay the cost of the additional inspections.
• Mines placed in a pattern status will remain in that status for one year after they resume production and must meet specific statutory performance benchmarks to be removed at the end of that period.

Investigations, Subpoenas, and Injunctions

• Gives the Secretary of Health and Human Services and NIOSH authority to appoint a Panel to conduct a separate investigation of any mine accident involving in three or more deaths or any accident which the Secretary of HHS determines merits an independent investigation.
• Grants MSHA broad authority to issue subpoenas to compel the production of witnesses and documents in connection with inspections and investigations relating to safety and health issues.
• Grants MSHA broad authority to seek injunctions against any conduct which, in the judgment of MSHA, constitutes a continuing hazard to the safety and health of the miners.

Revocation of Mine Plans

• Allows MSHA to revoke approved plans and to immediately issue an order of withdrawal if approval was based upon inaccurate information or a material change in circumstances since approval.
• Requires that in any proceeding challenging a revocation of an approved plan, the contesting party must prove that MSHA’s decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.

Penalties

• Eliminates the general raise in penalties previously proposed but retains provisions doubling penalties for mines placed in a pattern status which fail to meet the specific statutory performance benchmarks at the first statutory performance review. However, such penalties are still subject to the statutory maximum for similar violations.
• Increases civil penalties for violations of section 105(c) to a minimum of $10,000 and a maximum of $100,000 for the first occurrence and a minimum of $20,000 and $200,000 for any subsequent violation within a three year period.
• Provides for pre-judgment interest on contested penalties beginning on the date of contest.

Individual and Criminal Liability

• Expands individual liability to agents who “knowingly” authorized, ordered, or carried out a violation, policy, or practice which resulted in the occurrence of a violation.
• Retains the existing misdemeanor criminal provisions for the first violation of a mandatory health and safety standard or order, but adds a felony provision for the second conviction. It also adds a felony provision for any instance where the operator’s actions knowingly exposed miners to a significant risk of serious injury or illness or death, or if an operator is found to have knowingly tampered with or disabled a required safety device which exposed miners to a significant risk of serious injury or illness or death.
• Anyone who gives advance notice of an inspection with the intention of impeding, interfering with or adversely affecting the results of such an inspection can be fined and imprisoned for five years.

Miners’ Rights

• Provides complainants with the right to review evidence submitted by the mine operator and to provide rebuttal during MSHA’s investigation.
• Provides that an order of temporary reinstatement continues in effect until there is a final order of the Commission of the case regardless of whether the Secretary pursues the case on behalf of the complainant.
• Prohibits the termination of underground hourly coal miners employed at mines placed in pattern status, and for three years after such placement, who have completed a 6 month probationary period without reasonable job-related grounds based upon a failure to satisfactorily perform job duties.
• Provides for additional miner pay for removal resulting from withdrawal orders issued under section 104, 107 (in connection with a citation), 108, or 110, up to a maximum of 60 days. An expedited hearing is available to an operator.

Safety Standards

• Establishes a statutory requirement that mine operators of underground coal mines institute a communication program to notify each miner entering the mine of current conditions.
• Raises the percentage of incombustible content to a minimum of 80% in all entries in underground coal mines and provides that additional incombustible content is required in the presence of methane.
• Requires that mine operators use direct reading monitors for incombustible content when such are available.

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP

Denver, Colorado

Responsible Attorney

Karen L. Johnston

(303) 390-0008

kjohnston@jacksonkelly.com

 

For more information, contact:

 

Laura E. Beverage (303) 390-0003	Karen L. Johnston (303) 390-0003
R. Henry Moore (412) 434-8801	Michael T. Cimino (304) 340-1000

The Jackson Kelly PLLC Occupational Safety and Health News Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety and Health News Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

 

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Karen L. Johnston is responsible for the contents of this alert