Proposed Rule Draws Fire From Former Commissioners

Steve Fiscor

During late November, a letter drafted by retired chairman of the U.S. Federal Mine Safety and Health Review Commission Mike Duffy and signed by 10 former members of the commission notified the Secretary of Labor that it did not agree with the Mine Safety and Health Administration’s (MSHA) proposed changes to section 30 CFR 100.

The former commissioners said that they “strongly oppose the proposed rule as an attempt to circumvent the express design of the statute, an unprecedented attack on the review commission’s independence and unlawful usurpation of the commission’s role as the ultimate and dispassionate assessor of civil penalties under the Mine Act. Thus, we join with the current commission in opposition to the proposed rule.”

In an era of sometimes unimaginable regulatory overreach, should the industry even ask why MSHA is proposing this change now? The system was working. The proposed rule change would condense citation description categories and some believe it would lead to inspectors increasing the severity of allegations. The proposed rule change would also strip away the commission’s authority, eliminating congressionally created independent assessment of penalties for MSHA-alleged violations.

MSHA claims the proposed rule change would reduce the quantity of litigated citations/orders and simplify the citation writing process. Meanwhile, others say the proposed rule changes will make it more difficult for operators to challenge citations/ orders and make it easier for inspectors to issue citations/orders. The Coalition for MSHA Fairness estimates that the MSHA proposal will increase penalties by as much as tenfold, convert almost all citations to “significant and substantial” violations, and eliminate incentives for voluntary safety initiatives.

The industry could see massive increases in penalties, according to the Coalition for MSHA Fairness. A small underground mine receiving 104(a) citations during three inspections in 2014 would see a tenfold increase ($2,500 to $25,000) in penalties. A midsized surface MNM mine receiving 104(a) citations during two inspections in 2014 would see a ninefold increase ($1,800 to $17,500) in penalties. A large surface MNM mine receiving 104(a) citations during three inspections in 2014 would see a threefold increase ($93,500 to $284,000) in penalties.

Litigation spiked when the last changes were made to part 100 and they have been dropping steadily since. The former commissioners recognize more than anyone the frustrations of dealing with surges in litigation. The commissioners pointed this out in the letter and also explained that initiatives taken to streamline the process for handling disputes arising from enforcement must comport with the law. “Congress made hard choices in response to the questions it confronted in fashioning the Mine Act,” the commissioners wrote. “Those choices must be observed and honored. One of those choices was the decision to cleanly separate the enforcement function from the adjudicative function by placing them in wholly separate agencies.”

The former commissioners asked the Secretary of Labor to withdraw the proposed rule to the extent that it encroaches upon the role, authority and prerogatives of the Independent Review Commission in its exclusive role of assessing penalties under the Mine Act.

Steve Fiscor, Editor-in-Chief, E&MJ

As featured in Womp 2014 Vol 12 -