MSHA Rules Campaign Brings Legal Consequences

Beware the Ides of March! That is the date---March 15, 2010---when MSHA will roll out enforcement activities on its new campaign, "Rules to Live By."

The program was unveiled last month in a private meeting with selected mining groups and some operators and then at two regional meetings in West Virginia and Texas. It is a supplement to the mandatory enforcement provisions of the Mine Act although it is not 100% clear whether this will trigger additional inspection events beyond the usual "2s and 4s"(plus any additional inspections flowing from accidents or complaints).

The concept is a sound one: focus enforcement on those standards that the agency has correlated with fatality causation. For years, the mining industry has indeed called upon MSHA to make more use of targeted inspections to best utilize its resources. However, that is not exactly what is going on here. MSHA retains its obligations to inspect all mines, regardless of their injury or compliance track records, and inspectors are still required under Section 104 of the Mine Act to issue citations for any conditions they observe or learn about that they believe constitute violations.

The new campaign adds another layer to this, which is likely to occur during normal inspections, although nothing rules out special-emphasis inspections like those OSHA does for amputations, silica, combustible dust, etc. Under this campaign MSHA inspectors will scrutinize the mine for alleged violations under 13 metal/nonmetal standards and 11 coal standards (whichever is applicable). Digging for these is, presumably, the way these become "priority standards of focused enforcement." Inspectors are then instructed to carefully consider for each violation the gravity (likelihood and seriousness of a potential injury) and negligence (what did the operator know, when did they know it, was an agent involved, and were there any mitigating conditions).

It is safe to assume that nearly all citations issued under standards on the emphasis list will be de facto significant and substantial. Similarly, I anticipate that most, if not all, citations issued under the targeted standards will be rated as high negligence or reckless disregard because MSHA is giving ample warning of its intentions and trying to explain what it views as needed to comply with the standards. By virtue of this information being posted on www.msha.gov, knowledge of it will be imputed to all mine operators and contractors working at mines.

But wait, there's more. According to MSHA's published information on the campaign, each citation issued under a priority-rules standard will be carefully evaluated for special assessment-which could raise penalties to up to $220,000, depending on the citation's classification, even where the regular Part 100.3 penalty assessment would be far lower. Ever since penalties were raised, effective April 2007, MSHA's use of special assessment had steadily declined because the revised penalties had significant deterrent effect under the normal assessment formulas. That trend is likely to do an abrupt about-face.

The meat of the program, as it affects aggregate producers, lies in standards that relate to the areas MSHA found are most involved with metal/nonmetal fatalities: fall from elevations, operating equipment (surface), maintenance; lock and tag, block against motion, hit by equipment (surface), pre-op examinations, roof and rib falls, communication, and unsafe acts.

Several of the standards already are among the top 20 standards that MSHA predictably cites during routine inspections, while others may be unfamiliar to mine operators in terms of what is required for compliance. Of course, the biggest wild card is how MSHA will interpret and apply these standards as part of its rules campaign, and whether the agency will use this as an opportunity to expand the scope or obligations. Initial indications are that it will.

Among the support materials that MSHA has made available on its Web site, as part of the promised outreach to industry, is a laundry list of engineering recommendations to help improve compliance with these standards and to assist in reducing injuries and fatalities associated with the related potential hazards. This is where it gets interesting because a careful review of these recommendations makes it clear that MSHA may have crossed the line beyond policy or guidance into potential rulemaking without formal notice and comment opportunities.

The recommendations raise some key questions as well. Will failure to adopt these recommendations constitute a knowing and willful violation? Do the recommendations constitute illegal rulemaking by MSHA to the extent that they expand upon the plain language of the codified standard? Is knowledge of these new recommendations imputed to all mine operators by virtue of being on www.msha.gov? Will failure to implement these recommendations increase potential tort liability for mine operators in the event of a third-party injury or fatality (or in states where a willful violation allows plaintiffs to circumvent the worker’s compensation exclusive remedy theory)?

Some examples of the recommendations provide a basis to consider these questions, all of which will likely be answered in courts of law or by the Federal Mine Safety and Health Review Commission.

Consider the following recommendations:
 

• Use rear cameras to prevent over-travel of equipment at dump points;
• Use collision-avoidance and proximity-detection systems;
• Install prominent emergency-shutdown and motion-arrest switches on mobile equipment;
• Install high-back seats with headrest support;
• Keep operator manuals in cabs of all mobile equipment (with weather protection) and require them to be read by operator before equipment use;
• Use solar powered signs for improved night warnings;
• Eliminate road grades greater than 15%;
• Install properly sized working platforms for maintenance of jaw crushers;
• Install designed platforms for tarping trucks;
• Use 100% tie-off fall-protection systems and portable tie-off systems on skid mounts;
• Use remotely operated tanker truck manhole covers;
• When working around water, equip miners with a water-activated alarm that transmits a distress signal to a dispatcher or operations station; and
• Use GFCIs to prevent electric shock and identify faults.

The list goes on for 11 pages. Let's look at a few of these. First, a number of years ago, MSHA considered, but did not codify, a requirement for video cameras on mobile equipment to identify hazards to the rear of equipment. Will mine operators now be deemed highly negligent if they do not have such cameras, or if they fail to properly maintain cameras that were voluntarily installed? MSHA is doing a proximity-detection system rulemaking now, but putting this in the guidance seems to telegraph MSHA's intention to require these even before the public has submitted their comments under the Administrative Procedure Act. MSHA also is seeking modification of mobile equipment switches and seats. Will this impact manufacturer's warranties, or turn the mine operator into a 'manufacturer' for product liability purposes? What will MSHA consider a properly sized work platform for crushers, and who is to design such platforms? Will an engineer's certification be required?

About 15 years ago, MSHA released policy requiring tarping platforms for trucks, but ultimately rescinded it after industry convinced the agency that this was illegal rulemaking. So does the new recommendations document now effectively mandate that all mines have such stations (or will it be applied as such if someone falls of a truck because a tarping platform was not furnished or the use of it enforced)?

It seems clear that a creative inspector will soon be making the case that simply because these technologies are available, their implementation can and must be read into the compliance obligations under the myriad subjective MSHA standards covered by the rules initiative. Similarly, a creative plaintiff’s attorney can read into these recommendations by a federal safety agency a duty on the part of the mine operator to provide these (and the many other listed) protections to miners and third parties on a mine site, and find a breach of these duties even where the plain language of an MSHA rule does not specifically mandate such action.

These observations are, in part, speculation, since the campaign had not yet begun as of this writing. But it certainly is clear that MSHA anticipates a lot more citations being issued under the targeted standards and the imposition of hefty fines against those who disregard their requirements. Beware the Ides of March, indeed.