Industry readers have not been surprised to see that enforcement and penalties at MSHA and OSHA have increased significantly. What may be shocking, however, is the expansion of MSHA and OSHA’s power through “executive fiat” by all levels of the agencies, and by their inspectors in the field. No better example exists than MSHA’s recent abuse of its closure order powers.
Since created by the 1977 Federal Mine Safety and Health Act, closure orders applied only to areas affected by the violation or hazard involved as described by the statute. Even when issued to close specific affected areas, MSHA closure orders have always permitted mine operator personnel to enter in order to evaluate and abate the conditions identified by the orders. Such entry is allowed under the Act. Under MSHA’s new view of its power, these restrictions on closure orders no longer apply, which has created vastly difficult operating circumstances, risks of massive and irreparable harm, and even serious safety and health risks never intended by the statute.
Two recent examples illustrate the MSHA power grab, its illegality, and the new MSHA’s lack of logic, expertise and enforcement “above all” approach. In MSHA’s history, prior to 2011, in the rare instance when a roof fall in a mine resulted in a closure order, the closure order was limited to the immediate area affected by the fall. Moreover, only certain roof falls were deemed immediately reportable to MSHA, likely because they unfortunately are more common in underground mines, and also because they are often intentionally caused by normal mine operations such as blasting or scaling to improve roof conditions. These immediately reportable falls—“accidents”—as defined by MSHA, impeded passage or ventilation, caused injury or death, or occurred above the anchorage zone of roof bolts. In turn, these “accidents” triggered MSHA closure order authority under Section 103(k) of the Mine Act.
Recently, MSHA changed its interpretation and issued a Section 103(k) closure order for an entire mine under the theory that if a roof fall occurred at a particular location, the operator could not guarantee that it would not fall somewhere else and cause a serious injury or death.
This power grab resulted in expanded closure for even a non-reportable roof fall, which did not cause injury, was not above the anchorage zone, and did not impede passage or ventilation. In fact, the fall occurred during scaling with a protected mechanical scaler, including a reinforced operator cab, in a remote area where a miner was intentionally trying to bring down what he perceived to be a potentially loose roof.
MSHA demanded the mine install bolt and mesh everywhere as a condition of re-opening the mine, even though it had a 60-year history of safe conditions without bolting and meshing in miles of entries, and had a roof control plan approved by MSHA requiring bolts and mesh to be used only as needed in identified areas. Experts with extensive experience in the geological conditions that MSHA demanded created unneeded risks by excessive roof drilling, but those views were rejected. Instead, MSHA relied on its own self proclaimed “expert” who had no experience whatsoever in similar mines or geological conditions and had never seen or inspected the roof fall that caused the mine closure. Ironically, the Administrative Law Judge vacated the MSHA citation for an alleged violation of the ground control regulatory mandate issued in conjunction with the roof fall and the order, yet the mine is still prevented from production even though there was no violation of law.
At the time this article was written, the mine was forced to limit its operations to the installation of bolts and mesh for the previous 90 days while it awaited the decision of a U.S. Circuit Court of Appeals on its challenge to the Closure Order and its request for a modification of the Order, which the Administrative Law Judge and the Review Commission upheld, stating, contrary to established law, they did not have the authority to modify it. While getting before a circuit court of appeals in less than 90 days on an enforcement challenge may have set a record, it is no consolation to the operator whose mine remains closed and whose rights have been trampled upon by the “new cop on the street.”
This is not the only example of MSHA expanding and abusing its closure order authority and application. A methane reading in one mine section resulted in the entire mine closure of a large, multi section coal mine, regardless of the fact that the methane was immediately rendered harmless by ventilation and carried away. Subsequent readings were within limits and the rest of the mine did not experience any methane blips and recorded normal, effective ventilation.
So what is to be done? One approach heard occasionally is to not challenge MSHA because the agency may “get mad” and the situation worse. We disagree. We believe that those who accept illegal MSHA enforcement will be treated like a kid surrendering to a bully, and invite more bullying. Instead, we believe legal contests of questionable MSHA enforcement actions, combined with political efforts to inform friendly members of Congress of the abuse and seek their assistance, are worth the effort. We also believe that combined legal and political strategies present real opportunities for winning and demonstrating that a company will not simply agree to illegal closures, making MSHA and its inspectors reluctant to act illegally again at the same mine or company.
Moreover, challenges to questionable closure orders can limit losses resulting from the orders; particularly if expedited and emergency hearings are held forcing MSHA to prove quickly that they acted legally and correctly, a difficult burden for the “new cop on the street” who ignores the law and acts irrationally, without sound engineering and safety rationales. Of course, there are never guarantees of winning in the legal or political forums, but from our perspective it’s the only strategy that makes sense until there is yet another “new cop” on the beat, with a better sense of the law and real expertise in the industry they are regulating.
Chajet is a partner with Patton Boggs LLP. He can be reached at 202-457-6511 or by e-mail firstname.lastname@example.org.