MSHA Update Panel Recent Developments in Mine Safety and Health Law American Bar Association Occupational Safety and Health Law Committee 2017 Midwinter Meeting March 9, 2017 Moderator: Kristin R.B. White, Jackson Kelly PLLC (Denver, CO) Panelists: Mark E. Heath, Spilman Thomas & Battle, PLLC (Charleston, WV) Art Traynor, United Mine Workers April Nelson, Associate Solicitor for Mine Safety and Health (Arlington, VA)
Developments in regulations and enforcement of the Mine Act Update on 105c interference cases Recent jurisdiction ruling Impact of S&S violation issues 110(c) penalties American Coal and settlements Workplace examinations in metal/nonmetal mines 2
Interference as a Cause of Action under 105c Secretary of Labor on behalf of McGary v. Marshall County Coal Co., 37 FMSHRC 2597 (ALJ Miller)(Nov. 2015) Secretary of Labor on behalf of Greathouse v. Monongalia County Coal., FMSHRC Docket No. WEVA 2015-904-D (ALJ Miller) (Dec. 2015)
Jurisdiction Maxxim v. MSHA, 16-3530 (6 th Cir. Feb. 13, 2017) This case is the first reversal of an MSHA attempt to expand jurisdiction to cover off site equipment repair shops. Maxxim has operated repair shops for many years. One shop was covered by OSHA in West Virginia. Upon moving to Sidney, Ky., to an abandoned mine site, District 6 MSHA asserted jurisdiction. An ALJ and the FMSHRC ruled MSHA had jurisdiction over the site, relying on a 2000 Commission decision, Jim Walter Resources, 22 FMSHRC 21.
Maxxim v. MSHA, 16-3530 (6 th Cir. Feb. 13, 2017) Amicus briefs were filed on behalf of Murray Energy and Foresight Energy, who had numerous shops that could have been subjected to MSHA jurisdiction. The 6 th Circuit found that off-site shops are not covered by MSHA jurisdiction. The Court specifically rejected both the Commission decision here and Jim Walter. The Sixth Circuit found no logic that a repair shop is covered by MSHA, but not manufacturers like Joy and Caterpillar. One Justice even commented the expansion appeared to be an attempt to use Chevron Deference as an inspector full employment act.
Maxxim v. MSHA, 16-3530 (6 th Cir. Feb. 13, 2017) Alpha, it is true, needs facilities like Maxxim s to repair equipment and manufacture new parts. But that reality does not transform the Sidney shop into a mine any more than it could have transformed the Jeffrey Company plant into a mine in the past or a Caterpillar plant into a mine in the future. Our court rejected a similar argument in the context of a road and bridge constructed by a mining company. Even though the road and bridge were the only means of getting the minerals from the surface mine to the loadout facility and even though they were used in the process, that did not make them mines under 802(h)(1)(C). Bush & Burchett, 117 F. 3d at 939. A similar conclusion applies here.
Maxxim v. MSHA, 16-3530 (6 th Cir. Feb. 13, 2017) This decision is controlling in Tennessee, Kentucky, Ohio and Michigan. We believe it is likely to be followed in other Circuits and the new incoming administration. This decision also show why more Amicus Briefs should be filed on important issues at the Court of Appeals level.
Significant & Substantial S&S Knox Creek Coal Corporation v. Secretary of Labor, MSHA, 14-2313 (4 th Cir. Jan. 21, 2016) This decision is important for two reasons one intended and one not so. This case arose out of MSHA s attempt to put the Knox Creek Mine, then owned by Massey Energy in 2009. A number of citations involved permissibility citations a MSHA requirement that electrical junction boxes have very tight clearances,.006 th of an inch, to prevent methane from igniting and traveling into the mine.
Knox Creek Coal Corporation v. Secretary of Labor, MSHA, 14-2313 (4 th Cir. Jan. 21, 2016) At hearing, MSHA wanted Judge Barbour to reject the Mathies test for significant and substantial and instead presume there would be an ignition that spreads into the mine. Judge Barbour rejected that attempt and used the Mathies test. The ALJ found that inside the junction boxes there were no problems with the electrical connections and there was no likelihood that the boxes could ignite methane or create an explosion. The citations were determined to be non S&S.
Knox Creek Coal Corporation v. Secretary of Labor, MSHA, 14-2313 (4 th Cir. Jan. 21, 2016) MSHA lost enough citations that the mine could not be placed on a pattern of violations. The Secretary still appealed the permissibility citations. The Commission reversed and found the permissibility citations were significant and substantial. The Commission also found a belt that was in the process of being cleaned up with a crew on the way to do the work was significant and substantial. The Fourth Circuit upheld the Commission decision, but made two important rulings on the standard of review by rejecting Chevron and how the significant and substantial test is to be administered.
Knox Creek Coal Corporation v. Secretary of Labor, MSHA, 14-2313 (4 th Cir. Jan. 21, 2016) The Court determined that MSHA litigation positions are not entitled to Chevron deference, but instead are entitled to the lesser deference standard under Skidmore. Skidmore v. Swift & Co., 323 U.S. 134 (1944). While MSHA s interpretation was upheld here under Skidmore, this part of the decision will be important in future cases.
Knox Creek Coal Corporation v. Secretary of Labor, MSHA, 14-2313 (4 th Cir. Jan. 21, 2016) The second part of Knox Creek is now being dealt with by our ALJs. The Fourth Circuit has determined at the primary focus on the Mathies test should be prong 2 of Mathies, not prong 3 that has been the focus of most cases. (2) a discrete safety hazard that is a measure of danger to safety contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury.
Knox Creek Coal Corporation v. Secretary of Labor, MSHA, 14-2313 (4 th Cir. Jan. 21, 2016) Prior to this decision, most litigation on significant and substantial focused on prong 3 and whether there was a likelihood of injury. The Fourth Circuit determined that under prong 3, you must assume the hazard will occur that hazard, if it occurred would result in serious injury. The Fourth Circuit believed likelihood should come into play under prong 2. This follows because, for a violation to contribute to a discrete safety hazard, it must be somewhat likely to result in harm. Knox Creek, pg. 26. The Seventh Circuit reached a similar decision in Peabody Midwest Mining v. FMSHRC, 762 F.3d 611 (7 th Cir. 2014).
Knox Creek Coal Corporation v. Secretary of Labor, MSHA, 14-2313 (4 th Cir. Jan. 21, 2016) To date, ALJs are beginning to apply these decisions. Judge Lewis and Judge McCarthy have issued decisions. Judge McCarthy followed both the Fourth Circuit and the old Mathies test in Sec. of Labor, MSHA v. Northshore Mining Company, LAKE 2015-340-M, et. al., (April 11, 2016) See also Newmont USA Limited v. Secretary of Labor, MSHA, WEST 2010-652-RM (April 18, 2016)(Judge Lewis)
110(c) Penalty Issues A significant issue continues to develop on MSHA late processing of Section 110(c) penalties against agents of the operator. MSHA has begun investigations after company cases are settled or even tried, well past the one year deadline in the regulations. Even when the investigations are timely started, MSHA has taken three or four years to make decisions on issuing 110(c) penalties. ALJ s typically have stayed the company case while the 110(c) process is completed. Now ALJs refuse to do so.
This means either the company has to defend itself without the testimony of key agents or the agent must submit to potential depositions and trial testimony before they know if MSHA will pursue a 110(c) case against them and have that testimony used against them. A few ALJ s are beginning to take action. ALJ Rae denied a Motion to Dismiss as the individual could not show prejudice by the delay. But she left open reconsideration at the end of discovery and also stated she would question any testimony not in the inspector notes due to the length of time. Sec. of Labor, MSHA v. Ralph W. Dushane, employed by CEMEX Construction Materials of Florida, LLC, SE 2016-132-M.
Even if Respondent cannot show actual prejudice, I find such a lengthy delay raises questions about the reliability of any testimony that is presented, including the testimony of the investigator. While Respondent is not entitled to dismissal at this time because he has not made a specific showing of actual prejudice, I will, however, entertain a renewed motion to dismiss before or at trial. In the event that Respondent, having had an opportunity to conduct full discovery, finds witnesses cannot be located or memories have indeed faded to the extent that he can demonstrate actual prejudice, dismissal may be warranted.
Path Forward??? This issue continues until ALJs or the Commission address the situation. Following a 2012 fatal, MSHA recently decided not pursue a 110(c) case over 4 ½ years after the accident. Perhaps the Commission should use the same standard being employed when Coal Companies miss the 30-day deadline to ask for a hearing when an assessment is received. The Commission has for many years denied reopenings to Companies that regularly miss the 30-day deadline to contest an assessment and the companies did not put in place a system to correct the problem.
Settlements before ALJs The American Coal Company, LAKE 2011-13 (Comm. 2016), on appeal Status of the Secretary s settlement authority under section 110(k) of the Mine Act. 19
WORKPLACE EXAMINATIONS 20
Evolution of the Requirements of a Workplace Examination Program Policy Letter July 22, 2015 Proposed Rule June 8, 2016 Final Rule January 23, 2017
New Rule on Workplace Examinations The final rule was made available for public inspection by MSHA on January 17, 2017. The final rule was published in the Federal Register on January 23, 2017.
New Rule on Workplace Examinations The final rule may become effective on May 23, 2017. This has been called into question by Trump administration memorandum.
WH Memo Regulatory Freeze On January 20, 2017, the first day of the new administration, the White House released a memorandum to all agencies entitled Regulatory Freeze Pending Review. Memo instructs all agencies to withdraw rules that had been submitted to the Federal Register but not yet published. How will this affect the January 23, 2017, publication in the Federal Register?
Status of Final Rule Limbo Rule has been pulled back for review, per MSHA source, despite having been published in the Federal Register. No notice has been published to temporarily postpone the rule s current effective date of May 23, 2017, by 60 days (per memo directive).
New Rule on Workplace Examinations SUMMARY: The final rule requires that a competent person designated by the operator examine each working place at least once each shift, before miners begin work in that place, for conditions that may adversely affect safety or health; that operators notify miners in the affected areas of any conditions that may adversely affect their safety or health; that operators promptly initiate corrective action; and that a record be made of the examination.
Important Distinctions Between Current Rule and New Rule Current Rule Allows mine operators to perform the workplace examination anytime during the shift before corrective action is taken. New Rule Requires an examination of each working place before miners begin work in that place.
Important Distinctions Between Current Rule and New Rule Current Rule Contains no requirement for operators to notify miners of adverse working conditions. New Rule Requires mine operators to notify miners of adverse working conditions in their working places.
Important Distinctions Between Current Rule and New Rule Current Rule Does not address the contents of the examination record. New Rule Requires the examination record to include: The name of the person conducting the examination; Date of the examination; Location of all areas examined; A description of each condition found that may adversely affect the safety or health of miners; And, when necessary, be supplemented to include the date of corrective actions taken for adverse conditions.
Important Distinctions Between Current Rule and New Rule Current Rule Requires mine operators to make the record of examinations available for review by the Secretary or his authorized representative. New Rule Requires mine operators to make the examination record available for inspection by an authorized representative of the Secretary and miners representatives and provide a copy upon request.
Prompt Notification of Adverse Conditions How do mine operators promptly notify miners of adverse working conditions? Verbal notification Descriptive warning signage Prompt notification is one that occurs before miners are potentially exposed to the condition e.g., before miners begin work in the affected areas. ONLY those miners who would be affected by the adverse condition require notification.
When to Record the Examination When does the competent person have to make a record of the examination? A record of each examination must be made before the end of the shift for which the examination was completed.
A Timing Problem? The operator is held responsible for notifying any miner who would be affected by the adverse condition prior to that miner potentially being exposed. However, the competent person is not required to complete the actual record of the examination until the end of shift.
Signing the Examination Record Do competent persons have to sign the record of examination? No. MSHA does not require a signature, but does require that the record identify the competent person conducting the working place examination.
Checklists and Electronic Records Does the final rule allow mine operators to use a checklist for recording the working place examination? Yes. Checklists may be used to record examinations.
Checklists and Electronic Records Does the final rule allow mine operators to keep electronic records of examination? Yes. Examination records may be kept electronically, if: Electronically secured so they cannot be altered Available for inspection Provide an electronic or paper copy upon request
ANY QUESTIONS?