For clients and friends of Jackson Kelly PLLC
Volume 10, Number 18
©2014 Jackson Kelly PLLC
On July 29, 2014, the Federal Mine Safety and Health Administration (“MSHA”) published a pre-publication draft of its Proposed Rule on the Criteria and Procedures for Assessment of Civil Penalties. A copy of the pre-publication draft can be accessed at: https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-17935.pdf. The Proposed Rule is scheduled to be published in the Federal Register on Thursday, July 31, 2014.
The goal of MSHA’s proposal is to place a greater emphasis on the more serious safety and health conditions and provide improved safety and health for miners. MSHA believes its proposed changes will decrease subjectivity, improve objectivity and consistency, and result in fewer areas of disagreement and earlier resolution of enforcement issues, which is emphasized repeatedly throughout the proposal. Although the provisions for obtaining safety and health conferences are contained in existing 30 C.F.R. Part 100, the proposal is silent on whether the conferences will also be used as a tool to resolve enforcement-related issues quickly without the need for litigation.
MSHA’s proposal also addresses the Federal Mine Safety and Health Review Commission’s (“Commission”) alleged inconsistencies in assessing penalties without regard for the Secretary’s penalty regulations at 30 C.F.R. Part 100. MSHA believes its authority is being undermined by the Commission’s inconsistencies, and that it encourages operators to file penalty contests because of a belief they may obtain a lower penalty through litigation. MSHA also states the Commission does not have the authority to assess civil penalties de novo according to the six statutory criteria and that it interferes with the Secretary’s ability to establish a penalty policy that serves as a deterrent to mine operators.
The proposal makes several significant amendments to the existing Part 100 Criteria and Procedures for Proposed Assessment of Civil Penalties. The key elements are outlined below:
- Proposal would place increased emphasis on Negligence, Violation History (including repeat violations), and the Severity factor of gravity.
- Proposal would place less emphasis on Likelihood of occurrence, and controller and contractor sizes.
- MSHA’s Negligence criterion would be reduced from five to three: Not Negligent, Negligent, or Reckless Disregard.
- “Negligent” would be defined as “The operator knew or should have known about the violative condition or practice.”
- Likelihood of occurrence categories will also be reduced from five to three: Unlikely, Reasonably Likely, or Occurred; the Highly Likely category will be deleted.
- Severity of injury categories will be reduced from four to three: No Lost Workdays, Lost Workdays or Restricted Duty, or Fatal; the Permanently Disabling category would be eliminated.
- The Persons Affected category would be reduced from 11 to two: only “no persons affected” or “one or more persons affected” would remain “thereby reducing contests related to the inspector’s estimates.”
- An additional 20% Good Faith penalty reduction IF, the operator accepts the citation as issued, without contesting, and pays the penalty in full before it becomes a final order of the Commission.
- Revises the penalty conversion table total points from “31 or fewer” to “73 or more”;
- Minimum and maximum penalties would remain at $112 and $70,000 for non-flagrant violations.
- Minimum penalties for unwarrantable failures would be increased by 50%;
- Minimum penalties for § 104(d)(1) citations or orders would be raised to $3,000 and the minimum penalty for § 104(d)(2) orders would be raised to $6,000.
- Changes to the Commission’s approach to assessing civil penalties de novo according to the six statutory criteria.
- Require 30 C.F.R. § 100.3 to govern both MSHA and the Commission’s assessment of penalties; or
- Allow the ALJ’s to make a departure from MSHA’s formula if the Commission reviews the ALJ’s findings of penalty related facts and application of the civil penalty formula for abuse of discretion.
It is significant to note, that in developing its Proposed Rule, MSHA considered data for only one year, the most recent available from January 1, 2013, through December 2013.
In its requests for comments, MSHA states that it is interested in comments that address alternatives to improving consistency and objectivity in the application of the new proposed criterion, including VPID formula, negligence, likelihood of occurrence, and severity, and would encourage operators to resolve enforcement issues quickly and increase resources allocated to improving the safety and health of miners. MSHA also seeks comments on whether its Part 100 penalty formula should govern the Commission’s assessment of penalties or whether the Commission should be able to depart from it. Comments are also sought on whether MSHA should continue to address penalty-related issues on a case-by-case basis through litigation rather than rulemaking.
The Proposed Rule raises many questions. Would the proposed modifications render the last 35 plus years of Commission case law, which were based on the prior negligence and gravity criterion, moot? Do the proposed changes to the negligence and gravity criterion take away or severely limit the operators’ rights to challenge enforcement actions? Although the penalty points assigned and the points on the corresponding penalty conversion table are lowered, will operators still be assessed higher penalties? Why were MSHA’s special assessment procedures, which have recently been under fire, not addressed in the proposal? How will MSHA’s new negligence designations impact flagrant designations and assessments? How will the unwarrantable failure analysis change with the elimination of the negligence designations? Will safety and health conference requests be granted as a matter of practice to help resolve enforcement related issues quickly?
Comments to the Proposed Rule must be received by MSHA on or before September 29, 2014.
This article was authored by Kristin R.B. White, Jackson Kelly PLLC. For more information on the author, click here.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Kristin R.B. White
(303) 390-0006
For more information, contact:
|
Laura E. Beverage (303) 390-0003 |
Karen L. Johnston (303) 390-0008 |
|
R. Henry Moore (412) 434-8801 |
Michael T. Cimino (304) 340-1000
|
The Jackson Kelly PLLC Occupational Safety & 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 & Health News-Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.
If you or others would like to receive future copies of the Jackson Kelly PLLC Occupational Safety & Health News-Alert via e-mail, please send your name, job title, and company name, along with your e-mail address, to Janet Kosman at jlkosman@jacksonkelly.com. You may also call her at (303) 390-0038.
If you wish to UNSUBSCRIBE to this legal news alert list, please reply to this e-mail and type the word ‘UNSUBSCRIBE’ in the subject line.
The Rules of the Kentucky Supreme Court require the following: THIS IS AN ADVERTISEMENT.
KRISTIN R.B. WHITE IS RESPONSIBLE FOR THE CONTENTS OF THIS ALERT.
Comments