OSHA's Twin Sister Is In Your Backyard

by Fisher Phillips
Contact

[authorMatthew Korn]

You would be hard-pressed to find someone who has not heard of OSHA. OSHA's presence is felt by employers across broad segments of American industry, from construction to food service. What many people don't realize, however, is the pervasiveness of OSHA's (older) sister agency, the Mine Safety and Health Administration, or MSHA.

Formerly known as the Bureau of Mines, MSHA has been in existence since 1910, when there were more than 2,000 mine fatalities annually. Congress created the current enforcement scheme with the Federal Mine Safety and Health Act of 1977 (the Mine Act). After four major mining accidents in 2006, Congress passed the Mine Improvement and New Emergency Response Act, drastically increasing MSHA penalties associated with health and safety violations.

Are You Subject To MSHA?

MSHA's title can be misleading; the agency's jurisdiction is far more expansive than many people realize. In addition to the obvious industries that are affected – coal mining, quarries, and other mineral extraction, including sand and gravel pits, limestone, gold, etc. – MSHA's reach extends to related industries including construction, trucking, blasting, milling, manufacturing and supply, engineering firms, and many more. Even the person who restocks the vending machine at the mine site must be given some minimal safety training.

Geographically, MSHA's presence can be felt in every state. Mine operators and industry service providers are typically subject to both federal and state regulation. And of course many mines employ hundreds of workers, subjecting mine owners to a variety of labor and employment concerns.

Expect An Inspection

Armed with the Mine Act and a thick book of regulations, federal inspectors conduct warrantless inspections of every mine in America. In fact, unlike OSHA, MSHA inspectors are required to inspect every inch of surface mines twice a year and underground mines every quarter. For some large underground mines, this means having at least one federal inspector in the mine every day.

MSHA inspections include examination of training records, "preshift" and "onshift" inspection reports required by the Mine Act, and thorough inspection of every piece of equipment on mine property. MSHA inspectors have the authority to cite safety violations to the mine operator and to any independent contractors on the property – often, inspectors are instructed to issue the same citation to both companies, which is permitted by the Mine Act.

MSHA's authority differs from OSHA in another very significant respect. In all cases where an MSHA inspector identifies what is believed to be a safety violation, the company is required to "fix" the cited safety issue before being given the opportunity to contest the violation. This sometimes involves purchasing expensive equipment or undergoing significant repairs. And iIf the company does not comply with the inspector's orders within a "reasonable time" it is subject to further violations and penalties.

MSHA inspectors also have the authority to shut down certain areas of the mine, or the entire mine, all before the operator has an opportunity to challenge the inspector's determination. Despite the availability of "expedited hearings," these powers can prove extremely costly for affected companies.

Full Speed Ahead!

And MSHA is not slowing down. In fact, the Assistant Secretary of Labor for MSHA, Joe Main, formerly with the United Mine Workers of America, recently released the third phase of a campaign to target certain health and safety standards for increased enforcement. MSHA's "Rules to Live By III: Preventing Common Mining Deaths," identifies 14 safety standards – eight in coal mining and six in metal and nonmetal mining – that MSHA cited as contributing to a significant number of fatal accidents over the past decade.

By April 1, 2012, federal inspectors will be trained to "increase scrutiny" and "carefully evaluate" violations of these standards, which will inevitably lead to higher penalties and more litigation. This campaign is just one tool the government is using to regulate the mining industry.

Over the past several years, the government has bombarded the mining industry with increased regulation. Tactics have included the implementation of a "pattern or practice" standard to identify repeat offenders, monthly "impact inspections" that blitz mine operators with as many as six inspectors entering the mine at once, issuance of "flagrant" violations up to $220,000 per citation, and an injunction to shut down a mine permanently. Notably, a West Virginia coal company recently paid over $200 million to settle civil and criminal liabilities, amounting to the largest penalties in MSHA's history.

MSHA's authority and penalty structure can be disastrous for mines of all sizes. Employers subject to MSHA regulations can be found everywhere, including right in your backyard. If you would like to discuss MSHA regulations further, or the mining industry generally, we would be happy to speak with you.

For more information contact the author at mkorn@laborlawyers.com or (803) 255.0000.

Before joining Fisher & Phillips, Matthew Korn litigated more than 150 cases on behalf of MSHA as an attorney with the U.S. Department of Labor, Office of the Solicitor. Each of his cases involved technical mining and engineering concepts, industry terminology, and complex regulations. Matthew was part of the Mine Safety and Health Litigation Backlog Project, an effort by the government to clear a backlog of more than 10,000 cases before Administrative Law Judges at the Federal Mine Safety and Health Review Commission (FMSHRC). This backlog was created, and continues to exist, as a result of increased government enforcement, increased civil penalties, and an increased contest rate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.