On April 6, 2012, the Mine Safety and Health Administration (“MSHA”) unveiled its final rule in the Federal Register entitled “Examination of Work Areas in Underground Coal Mines for Violations of Mandatory Health and Safety Standards.” This new rule takes effect on August 6, 2012 and will have significant consequences to coal mine operators and their certified mine examiners. This new rule will impact the manner in which examinations are conducted, recorded and corrective action taken. The new rule will also give rise to potential increased liability of mine operators and their examiners personally and increase the financial burdens on an industry already facing unprecedented regulation, economic strain, decreased coal demand and permitting, layoffs and mine closures.
Veterans of the coal industry with knowledge of MSHA’s safety regulations will have already recognized the significance of the new rule within the title itself. The new rule increases the duties of mine examiners to include the recognition, reporting and correction of actual violations of mine safety regulations, in addition to the prior requirement regarding the subjective recognition of “hazardous” conditions. Such regulation is ominous as MSHA has essentially deputized company mine examiners into enforcement inspectors. The transformation of mine examiners into mine inspectors will place an unreasonable burden on them with staggering legal liability and little chance of compliance.
This impractical dichotomy of mine examiner and mine inspector brings to mind one of my favorite literary achievements. The term “Catch-22” was first introduced to the American lexicon by author Joseph Heller in one of the greatest American novels of the twentieth century of the same title. The novel is set in Word War II and follows the military service of a bombardier pilot. In this fictional comedy, the bombardiers are subject to a cunning bureaucratic rule, or “Catch-22”, that provides that any bomber pilots who willingly continue to fly bomber missions are deemed insane, but if the pilots try to avoid flying missions, such as by faking an injury or some other means of escape, then they are deemed sane and required to continue on flying missions. MSHA’s final rule on examinations poses a “Catch-22” on coal mine operators and their examiners with serious legal consequences.
By way of background, current MSHA regulations set forth in 30 C.F.R., Part 75, require that mine operators conduct daily pre-shift and on-shift examinations (§75.360 and §75.362), supplemental examinations (§75.361) and certain weekly examinations (§75.364). These examinations must be conducted by an examiner certified to conduct such examinations. The examinations rules also require that the certified examiners examine for “hazards.” The determination of whether or not a condition is a “hazard” is subjective and guided by the examiner’s personal perception, knowledge, training, and experience. The examiners are required to report “hazards” to mine management and such conditions must be recorded in an examination book. The operator then is required to correct such conditions within a reasonable time, which can differ depending on the seriousness of the “hazard.” Some “hazards” may be corrected on the next shift, the next idle shift or immediately, depending on the circumstances.
MSHA’s final rule revises the requirements for pre-shift, supplemental, on-shift and weekly examinations by requiring that mine examiners check for actual violations of safety and health standards, as well as for “hazardous" conditions, correct those violations and record the action taken to correct them. The final rule also requires mine operators to review with mine examiners, on a quarterly basis, all citations and orders issued by MSHA inspectors in areas where pre-shift, supplemental, on-shift and weekly examinations were conducted. The final rule also will apply to hazardous conditions and violations of the following nine (9) standards:
§75.202(a) - roof support;
§75.220(a)(1) - the mine roof control plan;
§75.333(h) - maintenance of ventilation controls;
§75.370(a)(1) - the mine ventilation plan;
§75.400 - accumulations of combustible materials;
§75.403 - application of rock dust;
§75.1722(a) – guarding moving machine parts;
§75.1731(a) – maintenance of belt conveyor components; and
§75.1403 – other safeguards, limited to maintenance of travelways along belt conveyors, off track haulage roadways, track haulage, track switches, and other components for haulage.
The potential impact of this new rule on mine operators and their examiners is obvious. With these requirements, the transformation of mine examiners into mine inspectors will be complete and have the absurd legal consequences as a “Catch-22.” Typically, MSHA inspectors do not cite mine operators for an inadequate pre-shift or on-shift examination when they cite an underlying condition, unless the evidence is compelling that the condition likely existed at the time of the last examination. There are exceptions to this statement, of course, but inadequate examination citations are issued more critically by inspectors. Under the new rule, however, when a federal inspector cites an operator for a violation of one of the enumerated standards, he or she will undoubtedly cite the operator for a failure to conduct an adequate pre-shift or on-shift examination where the cited condition is not recorded in any examination book. Conversely, where an examiner diligently observes and records a condition, the inspector will use the examination books as the foundation to issue citations for those recorded conditions, even in instances where the observed conditions did not pose a hazard and the operator had not yet had a reasonable opportunity to correct the conditions. The inspectors also may issue inadequate examination citations where the conditions were properly observed and recorded, but the operator has not had a reasonable time to correct the condition.
Therein lies the “Catch-22.” MSHA will cite the operator for inadequate examinations regardless of whether or not a condition has been observed and recorded, whether or not it could have developed between examinations and regardless of its level of severity. MSHA also will be handed the foundation to issue additional citations for the conditions found. Under this blatant destruction of Due Process principles, the mine operator and its examiners will be directly responsible for supplying the evidence to establish their own legal liability. This rule is sure to result in a significant increase in inadequate examination violations, which, in turn, may result in increased numbers of Section 110 special investigations to levy personal assessments against the examiners. An increase in the issuance of 104(b) failure to abate orders based on an operator’s failure to immediately correct reported conditions also may result, even where such conditions do not affect safety.
While it is laudable that MSHA seeks to improve mine safety through rule-making, one cannot help but wonder if the increased power given to inspectors will not be used improperly and arbitrarily. The industry’s examiners and mine operators are sure to feel the same confusion and frustration as the bombardiers epitomized by Joseph Heller in the “Catch-22” novel.
Despite the enforcement uncertainty facing mine operators as a result of this rule, there are steps mine operators can take to prepare for this sea change governing mine examinations. First and foremost, mine operators must properly train all of their examiners regarding the specific standards covered by the new rule, the requirements of those rules and proper examination techniques for recognizing, reporting and timely correcting such conditions. Such training must include upper mine management and be aimed at improving the culture of examinations at the mine. Examiners must view examinations as more than just a job duty; they must be viewed as indispensable to safety and compliance and exercised with extraordinary care. Mine management must also be provided the power, resources and leeway to ensure that observed conditions can be corrected efficiently and timely throughout the mining process.
Second, mine operators must implement better procedures for the accurate reporting and recording of violative conditions to reduce the time between the actual receipt of the report and the corrective action taken. Examiners must ensure that this corrective action is recorded and accurately reflects the extent of the action taken and the location of the same. One can envision a scenario where the examiner reports a condition and then MSHA uses the report to assert that it applied to a different condition subsequently found by an inspector to establish a violation or a failure to abate order.
Third, mine operators should consider implementing a rewards and recognition program for its mine examiners to recognize and reward those examiners who perform their job duties at the highest level of efficiency, accuracy and safety. Such programs must be tailored to tie the reward to compliance to achieve appreciable results.
Fourth, miners assigned the unenviable task of traveling with inspectors and mine management should be prepared to voice concerns or objections to inadequate examination citations by providing a detailed argument of its position in an attempt to dissuade inspectors from issuing the citation. Maintaining an open dialogue, rather than shutting it down, will be critical to improving compliance and avoiding unnecessary violations. The operator should document its position and explanation to the inspector, including any reasoning or evidence to support the argument that the condition had developed between examinations without the knowledge of the examiner or management.
Fifth, mine operators should request an informal safety and health conference within ten (10) days of the issuance of any questionable citations, including the citation for the underlying condition and the citation alleging an inadequate examination. This approach could result in the citations being vacated or modified before the proposed penalty assessment is issued, which could result in substantial savings and limitation of liability.
Lastly, mine operators should litigate any citations where MSHA has exceeded its authority or acted improperly or arbitrarily. Litigation is the last line of defense in keeping MSHA inspectors honest, but the decision to litigate must be made carefully by engaging in a cost/benefit analysis. While mine operators sometimes choose to litigate on principle, principle should not be the only consideration in this uncertain economic time within the industry.
In conclusion, mine operators must take great care to navigate the legal uncertainties created by MSHA’s final rule on coal mine examinations, the agency’s ultimate “Catch-22.” This rule should not be taken lightly. Mine operators should implement aggressive training programs to adequately prepare its examiners to ensure compliance and provide the necessary resources to ensure the examiners can fulfill their obligations. Such training also should aim at changing the culture of examinations at the mine from one of a routine job duty to one of a legal duty with serious ramifications for the company and the individual. These efforts, while expensive on the front end, will help restrain the potential increased corporate and personal liability posed by the final rule and will help all mine operators meet their goals of improving mine safety and being profitable.