Occupational Safety and Health NewsAlert

KENTUCKY GENERAL ASSEMBLY – HOUSE BILL 385 REGARDING DRUG AND ALCOHOL TESTING OF MINERS

For clients and friends of Jackson Kelly PLLC
Volume 8, Number 5
©2012 Jackson Kelly PLLC

 

         On February 9, 2012, Representative Jim Gooch (D) (District 12 – Daviess, Hopkins, McLean, Webster counties) and Representative Fitz Steele (D) (District 84 – Harlan, Perry counties) introduced and co-sponsored House Bill 385 during the current session of the Kentucky General Assembly.  House Bill 385 primarily deals with the drug and alcohol testing of miners, the appeals process miners have for failing a test, and the penalties for failing a test.

OPERATORS MUST INCLUDE CONTRACTOR FATALITIES IN SEC REPORTING UNDER DODD-FRANK

For clients and friends of Jackson Kelly PLLC
Volume 8, Number 4
©2012 Jackson Kelly PLLC

 

        On December 21, 2011, the Securities Exchange Commission (“SEC”) released its final rules implementing § 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. (“Dodd-Frank”).  As reported to you in Jackson Kelly PLLC’s Occupational Safety and Health News alert on December 22, 2011, the SEC rules require mining companies to satisfy various reporting requirements relating to mine safety. 

MSHA ANNOUNCES THIRD PHASE OF ITS “RULES TO LIVE BY” INITIATIVE

For clients and friends of Jackson Kelly PLLC
Volume 8, Number 3
©2012 Jackson Kelly PLLC

 

        On January 31, 2012, Assistant Secretary Joseph A. Main announced the launch of the Federal Mine Safety and Health Administration’s (“MSHA”) third phase of its “Rules to Live By” initiative‑“Rules to Live By III: Preventing Common Mining Deaths” (“RLB III”).  This latest phase focuses on 14 safety standards (8 coal, 6 metal/non-metal).  The first Rules To Live By initiative was introduced in January of 2010, and it focused on 24 frequently cited standards (11 coal, 13 metal/nonmetal) that MSHA believed caused or contributed to fatal accidents in nine accident categories.  The second Rules to Live By initiative was introduced in November 2010, and it focused on 9 coal standards which were cited during major disasters over the previous 10 years, contributing to five or more fatalities. 

WEST VIRGINIA GOVERNOR PROMISES “TOUGH” STATE LEGISLATION

For clients and friends of Jackson Kelly PLLC
Volume 8, Number 1
©2012 Jackson Kelly PLLC

 

         Governor Earl Ray Tomblin gave his “State of the State” address to the West Virginia legislature on January 11, 2012, and promised to introduce legislation to toughen West Virginia’s coal mine safety laws.  Although he provided no details, Governor Tomblin promised that the legislation would address the following issues:

CONGRESSWOMAN CAPITO (R-W.VA.) INTRODUCES THE “MINE SAFETY ACCOUNTABILITY AND IMPROVED PROTECTION ACT”

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 27
©2011 Jackson Kelly PLLC

 

        On December 16, 2011, Representative Shelley Moore Capito (R-W.Va.) introduced the Mine Safety Accountability and Improved Protection Act (H.R. 3697) in the 112th Congress.  According to Rep. Capito’s press release, the legislation “seeks to streamline the conference and appeals process, improve implementation of mine safety and health regulation, hold violators accountable by increasing penalties—both financial and criminal—for all violations of the law, all with the end goal of creating a safer working environment for our miners.”  The primary features of the legislation are as follows:

 

MSHA TO RETURN TO PRE-ASSESSMENT CONFERENCES

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 24
©2011 Jackson Kelly PLLC

        

        On December 1, 2011, MSHA announced it will begin implementing pre-assessment conferencing procedures in January 2012 in an effort to reduce the backlog of future violations before the Federal Mine Safety and Health Review Commission.  MSHA’s announcement follows the issuance ofthe “Evaluation of MSHA’s Pre-Assessment Safety and Health Conferencing Pilot,” a report published by MSHA’s Office of Program Evaluation and Information Resources (“PEIR”) on November 28, 2011.

 

ALJ FINDS THAT HISTORY OF § 75.400 VIOLATIONS IS NOT SUFFICIENT TO SUPPORT “FLAGRANT” DESIGNATION

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 17
©2011 Jackson Kelly PLLC

 

           On July 27, 2011, Administrative Law Judge Richard W. Manning issued a decision in Bowie Resources LLC,  Docket No.  WEST  2008-814, a case arising from the issuance of a § 104(d)(2) order alleging  a  violation  of  30 C.F.R. § 75.400.  The  Secretary  designated  the  alleged  violation  as “flagrant,” under § 110(b)(2) of the Mine Act.   Judge Manning held that no flagrant violation occurred. 

 

ADMINISTRATIVE LAW JUDGE DISMISSES CIVIL PENALTY PROCEEDINGS DUE TO SECRETARY’S LATE FILING OF THE PETITIONS FOR ASSESSMENT UNDER THE MINE ACT

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 16
©2011 Jackson Kelly PLLC

 

            On August 22, 2011, Administrative Law Judge Thomas P. McCarthy granted a coal mine operator’s motions to dismiss seven Civil Penalty Proceedings due to the Secretary of Labor’s failure to timely file the petitions for assessment. Secretary of Labor v. Long Branch Energy, Civil Penalty Proceedings Docket Nos. WEVA 2010-467; 652; 466; 653; 654; 2009-1788.  In each case, the operator had filed a timely penalty contest to the proposed penalties pursuant to Federal Mine Safety and Health Review Commission (“Commission”) Rule 26.  The Secretary failed to file the petitions for civil penalties within the required forty-five days of receipt of the operator’s contests and did not file a request for an extension of time in which to do so.  The Secretary’s filings ranged between seven and eleven months late.  Judge McCarthy ordered that the motions to dismiss be argued orally before him in June, after limited discovery regarding the Secretary’s proffered excuses for late filing. 

 

FEDERAL DISTRICT COURT UPHOLDS RIGHT OF UNDERGROUND COAL MINE OPERATORS TO CHALLENGE MSHA PLAN APPROVAL PROCESS

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 15
©2011 Jackson Kelly PLLC

        Underground coal mine operators are required to develop, and have approved by MSHA, a number of plans for each mine, including ventilation, roof control, and emergency response plans. These are developed through a process of “negotiation” with MSHA. The question arises frequently as to what happens when MSHA seeks to impose requirements that the operator is unwilling to accept or when MSHA will not accept an operator’s proposed plan provisions. MSHA’s Program Policy Manual sets out a procedure where the operator can ask for a technical citation and then litigate the issue before the Review Commission and its judges. This procedure is cumbersome and generally unsatisfactory.

DOL’S REGULATORY AGENDA INCLUDES AMBITIOUS PLANS FOR MSHA

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 13
©2011 Jackson Kelly PLLC 

 

          The Department of Labor (“DOL”) recently released its semi-annual Regulatory Agenda, and it includes numerous proposed items for the Mine Safety and Health Administration (“MSHA”).  Key items for the agency include the following: