Legal Developments in Mine Safety Law ADELE L. ABRAMS, ESQ., CMSP LAW OFFICE OF ADELE L. ABRAMS PC

Transcription

1 Legal Developments in Mine Safety Law ADELE L. ABRAMS, ESQ., CMSP LAW OFFICE OF ADELE L. ABRAMS PC

2 Overview Who s in Charge? David Zetazalo former Coal CEO prior clashes with MSHA while in industry Recent MSHA oversight hearing in Congress focus on new black lung clusters and silica MSHA issued 105,195 citations and orders issued during 2017, during 42,219 inspections. There were 28 mining fatalities in 2017, at 13,000 active mines in US 43% of fatalities related to powered haulage (expect new emphasis inspections) Ed Elliott former safety officer with Rogers Group (aggregates, cement). Serves as special assistant advising on metal/nonmetal issues MSHA penalties increased as of 1/2/18 maximum is now $259,725 per violation Budget/Appropriations Issues: For MSHA in FY 2018, little change due to continuing resolution Funding in FY 2019 budget proposal flat, realignment of $ to compliance assistance, away from rulemaking

3 Regulatory Accountability Act HR 5 Enacted by Congress, signed by President Trump IT S THE LAW!!! Amends APA to revise requirements for federal agency rulemaking by requiring agencies to base factual determinations on evidence and to consider the legal authority under which the rule may be proposed, the specific nature and significance of the problem the agency may address with the rule, any reasonable alternatives for the rule, and the potential costs and benefits associated with such alternatives. Requires agencies to publish advance notice of proposed rulemaking for major rules and for high-impact rules, for negative-impact on jobs and wages rules and those that involve a novel legal or policy issue arising out of statutory mandates. Sets forth criteria for issuing major guidance (likely to lead to an annual cost on the economy of $100 million or more, a major increase in cost or prices, or significant adverse effects on competition, employment, etc.) or guidance that involves a novel legal or policy issue arising out of statutory mandates; and Expands the scope of judicial review of agency rulemaking by allowing immediate review of rulemaking not in compliance with notice requirements and establishing a substantial evidence standard for affirming agency rulemaking decisions.

4 New Presidential Executive Orders 1 in, 2 out approach Zero Net Cost of New Rules (agency-wide bank ) 2/24 Exec. Order requires each agency to form task force to review existing rules and recommend repeal or modification if the rule eliminates jobs currently seeking stakeholder input SBA also doing regional roundtables on regulatory burden and reform Regulatory Freeze delayed implementation of Obama era rules Delays applied to OSHA e-recordkeeping, silica and beryllium rules, and MSHA workplace examination rule all of these are subject to reopening as a result of litigation

5 Enforcement Initiatives What will be the fate of Rules to Live By (and its calculator for impact inspections) Pattern of Violations (POV) litigation: possible conflict of interest for Zetazalo? MSHA continues to require Corrective Action Plans from operations at cusp of PPOV No mines currently under actual POV MSHA Rulemaking Activities Workplace Examination Final Rule (2017) implementation delayed until 6/2/18 but rule has been reopened to relax documentation requirements and allow end-of-shift examinations Possible rescission of some portions of respirable coal dust rule Delay in completion of proximity detection rule for mobile equipment in UG mines Delay in further action on diesel exhaust Delay in proposing crystalline silica rule for all mines plan had been to adopt OSHA rule, now on hold Civil Penalty and Citation Classification Changes DEAD

6 OSHA Crystalline Silica Rule OSHA Construction Job Sites Current (from 1971) September 23, µg/m 3 50 µg/m 3 (80% ) OSHA General Industry (Mfg) and Maritime Current (from 1971) June 23, µg/m 3 50 µg/m 3 (50% ) If less than the 25 µg/m 3 Action Level (AL), then rule does not apply 6

7 OSHA s 2016 GI/Maritime Rule Includes provisions for: Measuring worker exposures to silica if at or above 25 ug/ m 3 action level and workers get notification of results within 15 working days; Using engineering controls (e.g., water, ventilation) and work practices to limit exposures from exceeding 50 ug/ m 3 over 8 hr time-weighted average workday; Limiting access to areas where workers could be exposed above the PEL; Using respirators when necessary after implementing engineering and administrative controls; Restricting housekeeping practices that expose workers to silica if feasible alternatives are available; Medical exams for highly exposed workers; Worker training on work ops that result in exposure and ways to limit exposure; and Recordkeeping of workers silica exposure and medical exams.

8 Current MSHA M/NM Exposure Limits Part 56/ states Metal/Non-Metal applies the 1973 TLV established by ACGIH to determine Respirable Dust PEL Formula driven based on percentage of quartz: 10 mg/m 3 divided by the percentage of quartz plus 2 Example: 72% quartz sample 10/74 = 135 mg/m 3 To obtain the OSHA 50 µg/m 3 PEL standard would require a quartz concentration of 198% (not possible) 8

9 For 56/ , What Does MSHA Require? Performance-based standard applicable to each unique mining environment, not an overarching prescriptive standard How much must an operator do? if results of any samples taken during a survey under 56/ indicates that a miner s exposure to a dust,.is greater than the exposure limit, MSHA expects the operator to adjust control measures and conduct additional surveys to determine whether control measures are adequate in reducing exposures. surveys shall be conducted as frequently as necessary to determine the adequacy of control measures

10 OSHA Crystalline Silica Rule Litigation Industry challenged rule on 5 grounds: Claimed OSHA did not provide substantial evidence that the rule: 1) would reduce a significant risk of material impairment of harm ; 2) is technologically feasible for the foundry, hydraulic fracturing, and construction industries; 3) is economically feasible for the foundry, hydraulic fracturing, and construction industries; 4) can prohibit housekeeping methods that cause silica exposure, such as dry sweeping or using compressed air; and 5) claimed final rule violated Administrative Procedure Act through inadequate time for comment on data in record. Court panel (led by M. Garland) rejected all, and remanded rule, at Union request, for consideration of medical removal provision

11 Health Findings in OSHA s Rule Over 600 deaths/yr and new silicosis cases prevented by rule Crystalline silica categorized as respiratory toxin causally connected with silicosis, COPD, lung cancer, renal disease, autoimmune disorders at levels above 50 ug/m3 PEL DC Circuit made a material impairment finding based on the diseases noted above, but not renal disease or autoimmune disorders Rule states that more than 50 peer-reviewed studies were evaluated and found links between silica exposure and lung cancer in at least 10 industries Workers compensation cases already being filed at both OSHA and MSHA regulated worksite by current and retired workers based on findings in OSHA final rule

12 Key Case Decisions: MSHA Law

13 Sims Crane: What is Rigging? MSHA inspector cited crane operator who was walking under spreader bar during rigging process for working under suspended load ALJ held that spreader bar was part of load and not part of rigging refused to consider or apply OSHA crane standard Now pending on appeal before FMSHRC (oral arguments, summer 2017) MSHA issued new PPL on cranes during course of appeal (no rulemaking) suggests will follow OSHA rule BUT incorporated wrong definition of load in PPL no deference due to policy Issues before Commission: What is rigging and what definition to apply What is the rigging process and which workers are engaged in it Fair notice issues?

14 Adequate Workplace Examinations THE BACKGROUND: MSHA issued citations to Sunbelt Rentals, Inc. and several of its contractors, for violations of (a); contests were filed The Secretary of Labor argued that the Workplace Exam standard required the operator to perform an ADEQUATE EXAMINATION In underlying decision that was reviewed, Judge McCarthy held that the plain language of (a) did not include an adequacy requirement if MSHA wants to impose an adequacy requirement, MSHA may revise the standard to give the industry fair notice.

15 FMSHRC s Binding Precedent The Secretary of Labor/MSHA appealed the Judge s decision finding NO adequacy requirement On July 12, 2016, the Review Commission vacated Judge McCarthy s decision, and Commission held the examination must be adequate Adequate in the sense that it identifies conditions which may adversely affect safety and health... that a reasonably prudent competent examiner would identify during the examination A Reasonably Prudent Person should be able to recognize a hazard warranting corrective action Adequate found to be a consistent concept in Commission case law, and repeatedly applied to broadly worded standards

16 Impact of Sunbelt Rentals?? The Sunbelt Rentals decision broadened the scope of the examination now the examination must be adequate FMSHRC also held that multiple operators (mine production operator and its contractors) can be cited for failing to perform adequate working place examinations or the same violation dual citation theory see Twentymile Coal (USCA 2006) FMSHRC dismissed Sunbelt s fair notice arguments (that it did not have fair notice that it could be cited for an inadequate examination) FMSHRC held Sunbelt had fair notice through the longstanding reasonably prudent person test

17 Imminent Danger & Gravity Knife River Construction (2014) case Mine operator cited for bad parking brake, citation issued as S&S with a companion Section 107A imminent danger order At trial, ALJ found that underlying violation was NOT significant & substantial and modified likelihood to Unlikely to cause an accident but he upheld the Imminent Danger Order FMSHRC also affirmed ALJ ruling BUT On appeal to US Court of Appeals (DC Circuit), case was referred to mediation on the Imminent Danger issue In 2017, MSHA voluntarily withdrew Sec. 107A Order as part of settlement indicated it is not the agency s intent to couple Imminent Danger orders with non-s&s violations Sec. 107A Orders are considered elevated actions for Pattern of Violations purposes and can also trigger personal Sec. 110 penalties (if related citation/order is high or reckless disregard negligence, even if issued under Sec. 104A)

18 Section 105(c): Interference Cases Threats May Violate Miners Rights Michael K. McNary v. Alcoa World Alumina, LLC, CENT DM (March 28, 2017) Supervisor allegedly threatened McNary with removal from the plant, department, and position as MSHA Rep) after he called the health and safety personnel No person shall discharge or in any manner discriminate against or otherwise interfere with the exercise of statutory rights of any miner because such miner has filed or made a complaint under or related to this Act or because of the exercise by such miner of any statutory right afforded by this Act. ALJ had dismissed case because of no adverse action. Commission reversed and held that threat may violation Section 105(c)(1).

19 Commission Split on Fall Protection Standard Bussen Quarries, Inc., CENT (May 31, 2017) Section requires (1) a person was working (2) where there was a danger of falling (3) without wearing safety equipment. Dissent found that 6 foot requirement suggested in MSHA PowerPoint guidance is not binding. Lead blaster had placed pump cart within 4.5 feet of a highwall with 70 foot drop. No fall protection was worn.

20 Document Requests - Expanded Hopkins County Coal et al. (US Court of Appeals) Courts held MSHA can demand copies of personnel and medical records not required to be kept under the Mine Act if the records will assist with the investigation Section 103(h) gives the Secretary this authority - Dissent equated the effort to a fishing expedition MSHA requested 1) personnel files for miners, 2) disciplinary actions, 3) examination records, 4) employee handbooks Similar actions upheld under Part 50 investigations also MSHA held to be exempt from HIPAA because it is a public health agency and its right to information trumps miners privacy interests SEE ALSO Warrior Coal (USCA) held MSHA can require mine operators to provide it with the home addresses/phone numbers of miners in 110 investigations Since this decision, MSHA has issued Sec. 103(a) citations to operators who withheld info even if did so at request of workers

21 Shops May Not Fall Under Jurisdiction Maxxim Rebuild Company, LLC, 848 F.3d 737, 2017 MSHA asserted jurisdiction over repair shop although it had excluded five of the operator s other repair shops from jurisdiction. 6 th Circuit held that mining equipment repair shop was not subject to MSHA jurisdiction: Commission erred when it determined that a mining equipment repair shop was a "coal or other mine" subject to regulation by MSHA, as the shop did not extract coal or any other mineral, and it did not prepare coal or any other mineral for use. Term "coal or other mine" in 802(h) was meant to refer to locations, equipment, and other things that were above, in, beneath, or appurtenant to an active mine for purposes of the Administration's jurisdiction, such that the shop that made and repaired mining equipment and machine parts, and was not located near a mine.

22 Maxxim Decision - Jurisdiction But see USCA holding in Shamokin Filler Co. (34 FMSHRC 1897 (Aug. 2012), affd, 772 F.3d 330 (3d Cir. 2014), cert. denied, 135 S.Ct (2015),) where it held: MSHA's conduct or communications related to a decision not to assert jurisdiction over specific facilities are irrelevant to whether a different facility is subject to jurisdiction. This is because "[i]t is unlikely that any two facilities would be identical and warrant the same conclusion on jurisdiction." the fact that MSHA chose not to inspect Maxxim's facility in the past does not preclude MSHA from doing so in the future. Since the MAXXIM ruling, MSHA has released a number of off-site shops that repair mining equipment from its jurisdiction voluntarily!

23 Bag Plant Jurisdiction: OSHA v. MSHA Cranesville Aggregates, USCA, 2d Cir (No ) (2017). Operated a sand and gravel pit with several processing plants. OSHA conducted inspection of bag plant due to hazard complaint. Cranesville argued plant was under MSHA jurisdiction after $500,000 in fines were proposed by OSHA. Asserted activities included milling: which is under MSHA jurisdiction OSHA asserted activities were manufacturing because it included the drying and bagging of sand. OSHA had never inspected the site. ALJ said MSHA had jurisdiction. Commission split on whether OSHA or MSHA had jurisdiction.

24 Cranesville Jurisdiction Decision USCA 2d Cir. held that OSHA had jurisdiction because: The Secretary of Labor who oversees both OSHA and MSHA reasonably construed the OSH Act as applying to the Cranesville operations. The operations fell "somewhere between the termination of the milling cycle and beginning of the manufacturing cycle. Operators left with little concrete guidance. Each situation will be reviewed on a case by case basis.

25 Equipment Must Always Be Functional Beverly Materials: Mine operator cited under (a) Manually-operated horns or other audible warning devices provided on selfpropelled mobile equipment as a safety feature shall be maintained in functional condition. Horn had worked during pre-shift, during operation, and was heard by inspector. But during MSHA inspection it did not work. Commission found that an operator has continuing obligation to ensure safety alarms do not fall into disrepair. Must be functional at all times unless tagged out of service. ALJ had found that intermittent functioning of horn on scraper satisfied standard and vacated citation.

26 Commission Overturns Seatbelt Holdings Nally & Hamilton Enterprises (2016) FMSHRC overturned ALJ s ruling to vacate a seatbelt citation, reversing 42 years of precedence Southwestern Illinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983) had held operator had duty to require not duty to guarantee M/NM standard, written after (i) now held to impose guarantee Commission held that sensible interpretation means seat belt has to be worn regardless of training or policies that operator may have. Therefore operator is still strictly liable.

27 Questions??? Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams PC Eastern office Western office