Member Article

An Update in the World of Workplace Safety

MSHA Civil Penalties

On August 16, 2019, the United States Department of Labor Office of Inspector General (“OIG”) issued a report on MSHA’s civil monetary penalties (“CMP”) program. Specifically, OIG wanted to know to what extent the CMP program deterred unsafe mine operations as media reports seemed to indicate MSHA allowed mine operators who were delinquent in paying civil penalties to operate without consequence.

OIG analyzed data from 2000 to 2017 – a period of time where MSHA issued more than $1 billion in penalties to mine operators – and of which MSHA collected approximately 90% of all violation penalties. The report revealed some interesting information about the program:

• Most fatal or permanent injury accidents occurred at mines where operators paid almost all of their penalties assessed.
• There is no correlation between the percentage of penalties paid and the average number of fatal or permanent injury accidents.
• The frequency of severe violation reoccurrence was similar whether or not violation penalties were paid.

Moreover, OIG found 75% of operators paid their violations in full and those operators who received a penalty between 2000 and 2017, 84% had fewer than 100 violations. OIG also found the program did not necessarily deter bad operator behavior, as the frequency of severe violation recurrence was almost identical whether the operator paid or not.

One alarming item in the OIG report was a suggestion of a possible modification of penalties in the future. Specifically, based on the data reviewed by OIG, the CMP may not provide enough of a financial disincentive to avoid future violations. This was largely based on the data showing operators paying penalties and continuing to incur penalties during the 18 year review period. A corollary to this finding was operators who did not pay their civil penalties believed the methods currently available to MSHA to collect an unpaid debt lacked any deterrent effect.

Because of the apparent lack of deterrent effect for unpaid civil penalties OIG further analyzed MSHA’s 2012 Scofflaw Program. OIG noted MSHA had two avenues to consider once a Scofflaw operator was identified: (1) federal court through Section 108 of the Federal Mine Safety and Health Act (“Mine Act”) or (2) issue a separate enforcement action to the mine operator under Section 104 of the Mine Act (with the potential for a subsequent Section 104(b) order until the original enforcement action was abated). OIG determined MSHA only utilized Section 108 of the Mine Act on six occasions and utilized additional Section 104(a) enforcement actions five times (and subsequent Section 104(b) orders two times) between 2012 and 2017. OIG did note that the 2018 Scofflaw program provides an additional avenue for MSHA collect unpaid civil penalties – seeking enforcement with the Court of Appeals under Section 106 of the Mine Act.

Speaking of the 2018 Scofflaw program, MSHA modified its program to notify operators by letter of the delinquent assessments. MSHA requested payment within 30 days of the letter and if the operator did not pay, MSHA would issue a Section 104(a) enforcement action for non-payment. In 2018, MSHA issued 38 letters to mine operators (with an additional 2 in 2019). If an operator had received a Section 104(a) enforcement action and had not paid the penalties, MSHA would issue a Section 104(b) order effectively shutting down the mine. In 2018, 15 mine operators received a Section 104(b) order (with an additional 3 in 2019). Of the 18 who received a Section 104(b) order, 8 had no outstanding safety violations at their operation and were only closed to recover the previous penalty amounts.

Finally, OIG found mines that experienced changes in ownership had worse safety records than those whose ownership did not change. OIG noted mine operators could skirt financial responsibility by selling the mine or possibly declaring bankruptcy and if the mine was sold the delinquent operator could not be pursued as a Scofflaw. As a result, OIG believes if MSHA cannot hold mine operators accountable for their penalties prior to opening a new mine these Scofflaw operators have less of an incentive to prevent future safety hazards.

Respirable Silica Quartz

On August 29, 2019, published in the Federal Register a Request for Information (RFI) to collect data on miners exposed to silica (quartz) in respirable dust. MSHA specifically requested information on best practices to protect miners’ from exposure to silica, an examination of an appropriately reduced permissible exposure limit (“PEL”), potential new or developing protective technologies, and/or technical and educational assistance. MSHA requested comments to be submitted by October 28, 2019.

In the RFI MSHA noted its standards for metal/nonmetal mines (30 C.F.R. Section 56.5001/30 C.F.R. Section 57.5001) were based on the American Conference of Governmental Industrial Hygienists (“ACGIH”) Threshold Limit Value published in 1973. The current standard for metal/nonmetal mines is 10 mg/m³ expressed as the concentration of respirable dust for a full-shift or an 8-hour equivalent time-weighted average. The coal standards are found at 30 C.F.R. Section 70.101, 30 C.F.R. Section 71.101, and 30 C.F.R. Section 90.101. If the sample of quartz exceeds 0.1 mg/m³ MSHA reduces the standard for the sections of the mine where the sample was taken. The RFI also stated NIOSH has recommended an exposure limit for silica of 0.05 mg/m³ while ACGIH has reduced its Threshold Limit Value to 25 ug/m³. Finally, the RFI noted OSHA amended MSHA’s existing standards to establish a permissible exposure limit of 50 u/ mg/m³.

The primary means of controlling respirable dust are still engineering or environmental controls. Moreover, respiratory protection should not replace these controls but instead should be provided to miners until controls are implemented that are capable of maintaining respirable dust levels in compliance with the standards.

Under the metal/nonmetal standards control of dust must be achieved by exhaust ventilation or by dilution with uncontaminated air. If accepted engineering controls have not been developed miners may work for reasonable periods of time in locations only if they are protected by appropriate respiratory equipment. Similarly, in coal mines if a valid sample meets or exceeds the excessive concentration value, or if the mine operator receives an enforcement action for a violation of the applicable standard, the mine operator must take actions to protect miners, including making respiratory protection available while implementing dust control measures. MSHA further notes under its existing coal standards miners are not compelled to wear respirators and mine operators cannot use respirators as a substitute for engineering or environmental controls.

Finally, MSHA noted engineering controls are favored over administrative controls and PPE because they are designed to remove the hazard at the source before miners are exposed. Respirators are still used but MSHA has cautioned that to many miners respirators are not comfortable and thus their use is diminished, especially over an extended amount of time.

Silica has been at the forefront of MSHA policy and rulemaking changes for several years now. Because COPD, CWP, PMF, and RPP are still prevalent in the mining industry MSHA appears to be moving towards a more stringent rule on silica. This RFI gives members of the regulated community the opportunity to comment and provide data to assist MSHA to protect miners from exposure to silica.

Drone Use During OSHA Inspections

Back in July 2016 [insert link here] we reported on a new Federal Aviation Administration (“FAA”) final rule for the use of drones for commercial purposes. The rule addressed two main risks – drones colliding with other flying objects and drones falling and injury people or property on the ground. Our July 2016 article discussed how the FAA final rule would impact mine operators who use (or will use) drones for safety and security uses to exploration and development.

Fast forward to May 2018 and when OSHA first advises its Regional Administrators of planned use of Unmanned Aircraft Systems (“UAS”) to collect evidence during inspections in certain workplace settings. This memorandum noted the potential issues because of the FAA final rule regarding operator license requirements, accident reporting, and airspace requirements. In response, at that time OSHA indicated it may seek a waiver from the FAA to operate drones nationwide but that in the interim each OSHA region would need to designate a program manager to oversee the program. Finally, OSHA noted it would need to seek express consent from the employer prior to using drones on any inspection – and also provide notification to personnel that an aerial inspection would be taking place. This May 2018 memorandum then listed nine best practices for each region to follow. Thereafter, OSHA did use drones to conduct inspections for 2018, most of which occurred in situations where inspectors considered the area too dangerous to enter. This practice has continued in 2019 as OSHA still is seeking a waiver from the FAA to permit it to conduct inspections nationwide without employer consent.

The reality is if OSHA is able to obtain its waiver – and thus bypassing the need for consent – there is a real possibility that MSHA would seek a similar waiver. And as we have discussed previously, the use of drones could make both OSHA and MSHA more efficient in doing their jobs, i.e., issuing enforcement actions.

Stay tuned for further updates on these important issues.