Chapter 10. Increased Enforcement and Higher Penalties Under the MINER Act: Do They Improve Worker Safety?

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1 Chapter 10 &CITE AS 30 Energy & Min. L. Inst. 10 (2009) Increased Enforcement and Higher Penalties Under the MINER Act: Do They Improve Worker Safety? Mark E. Heath Timothy D. Houston Spilman Thomas & Battle, PLLC Charleston, West Virginia Synopsis Introduction Safety Climate Prior to 2006 and the Events of 2006 and [1] 2005 Was a Record Safety Year for the Mining Industry [2] The Events of [a] The Sago Mine Disaster [b] Aracoma s Alma Mine No [c] The Darby Mine Explosion [3] Congressional Response The MINER Act [4] 2007 and the Crandall Canyon Mine Collapse MSHA s Response to the Increase in Underground Coal Fatalities and the MINER Act [1] Procedure Instruction Letter No [2] MSHA Led the Changes to the Penalty Regulations [3] The Use of Pattern of Violations [4] An Increase in the Number of Inspectors and Inspection Hours Today s Enforcement Climate in the Wake of the MINER Act [1] Enforcement Paper Tops 100,000 in the Coal Industry Alone [2] Assessments Have Far Exceeded the Increases in the Number of Violations [3] Increase in Elevated Enforcement Actions [4] Impact of the Federal Mine Safety Health and Review Commission Impact on Fatality and Injury Rates [1] Fatality Rates [2] Non Fatal Days Lost Rates...322

2 10.01 ENERGY & MINERAL LAW INSTITUTE [3] All Injury Rates Conclusion Introduction. Prior to 2006, the mining industry in the United States enjoyed some of its safest years, reflecting a marked increase in the industry-wide promotion of safe practices and a steady decrease in the number of coal-related fatalities. It was widely believed in industry circles that the decrease in coal-related fatalities spoke to the successes of recent advancements in mine safety technology and training, as well as the increased level of cooperation between the mining industry and the Federal Mine Safety and Health Administration (MSHA). However, in the infant days of 2006, an unprecedented series of mine catastrophes brought national attention to an industry largely taken for granted, and simultaneously called into question the efficacy of underground mine safety. Early in 2006, the nation was rocked by a series of mine disasters that claimed the lives of 19 underground miners over the course of five months, a prelude to a total number of coal related fatalities in a single year that had not been seen in a decade. The response of Congress, and more importantly MSHA, was to increase penalties under the guise of reinforcing mine safety standards and regaining control of an industry that was now viewed by the general public as unsafe and equally unregulated. Despite the breadth and scope of these remedial actions taken by Congress and MSHA to combat a perceived state of emergency in the mining industry that had emerged overnight, any correlation between resulting advancements or improvements in underground mine safety and the developing penalty driven culture fostered by MSHA may be tenuous at best and, at worst, nonexistent. The purpose of this chapter is to examine the unprecedented climate change in the mining industry in the wake of 2006, the remedial steps taken by Congress and MSHA, and what impact if any these changes have had on key safety rates used to gauge mine safety. 302

3 ENFORCEMENT AND PENALTIES UNDER MINER ACT Safety Climate Prior to 2006 and the Events of 2006 and [1] 2005 Was a Record Safety Year for the Mining Industry. According to the Federal Mine Safety and Health Administration, 2005 was a benchmark year in terms of mine safety. In 2005, there were only three coal-related fatalities in West Virginia, down from 12 the previous year, and a total of 22 coal-related fatalities nationwide. 1 Advancements in mine safety technology, as well as invigorated corporate cultures stressing safety over production, were indicative of the increased level of cooperation between the mining industry and MSHA. As 2005 came to a close and West Virginia s coal mining industry looked ahead to 2006, industry expectations were high and the widely held belief was that 2006 could be the first year in the state s history with no coal mining related fatalities. [2] The Events of In the early days of 2006, however, the mining industry as well as the nation as a whole was shaken by a series of mine disasters that would lead to a number of coal related fatalities for total nationwide that had not been seen since In a very short period of time January 2, 2006 through January 19, 2006 a series of underground coal mining disasters in the coal fields of West Virginia brought national attention to a behind-the-scenes industry that, until then, was largely taken for granted and that the general public knew existed, but knew very little about. In May of 2006, as the mining industry recovered from the events occurring earlier in the year, tragedy struck again, this time in Kentucky. National attention again turned to the little-understood industry that powered America, but this time serious questions began to arise about safety in the underground coal mining industry, what really was going on underground, and what the federal government was doing to retake the reigns of what many were beginning to consider an unregulated industry. 1 See U.S. Dep t of Labor, Mine Safety and Health Admin., Coal Fatalities by State, Id. 303

4 10.02 ENERGY & MINERAL LAW INSTITUTE [a] The Sago Mine Disaster. On January 2, 2006, an underground explosion at Wolf Run Mining Company s Sago Mine in Upshur, County, West Virginia, caused by a methane buildup in a sealed area, resulted in the death of 12 underground miners. 3 Although it would take years to conclusively determine the cause, the best evidence establishes that a lightning strike attributed to a rare West Virginia January thunderstorm led to the ignition of methane in a newly sealed area. 4 The initial blast claimed the life of one miner, while 11 of his colleagues died from carbon monoxide exposure while awaiting rescue crews. Miraculously, one miner survived. [b] Aracoma s Alma Mine No. 1. What was unquestionably a tragic loss of life at the Sago Mine was compounded by a second event in the West Virginia coal fields just over two weeks later. On January 19, 2006, two more underground coal miners were killed at Aracoma Coal Company s Alma Mine No. 1 in Logan County, West Virginia. 5 On January 19, 2006, two underground miners died from carbon monoxide poisoning caused by an underground mine fire that was later traced to the longwall belt takeup storage unit. The two fatalities at the Alma Mine were the first attributed to an underground mine fire in a number of years, and raised particular concerns about ventilation plans and escapeways in the event of an underground emergency. [c] The Darby Mine Explosion. On May 20, 2006, roughly five months after the Alma Mine fire, five more miners died following an underground methane explosion at Kentucky Darby, LLC s Darby Mine No. 1. According to MSHA, the accident occurred because the [mine] operator did not observe basic mine safety 3 See U. S. Dep t of Labor, Mine Safety and Health Admin., Report of Investigation: Fatal Underground Coal Mine Explosion, Sago Mine, January 2, 2006, Sago Mine, at 1, Id. at See U. S. Dep t of Labor, Mine Safety and Health Admin., Report of Investigation: Fatal Underground Coal Mine Explosion, Aracoma Alma Mine No. 1 (2006), at 2,

5 ENFORCEMENT AND PENALTIES UNDER MINER ACT practices and because critical safety standards were violated. 6 Official investigations revealed that the explosion that claimed the lives of the five underground coal miners occurred when straps that went through seals were cut with a welding torch, igniting methane in a sealed area. 7 The Darby Mine explosion arguably marked the final schism between what actually was occurring in underground coal mines advancements in safety marked by a series of tragedies and the national perception of what was not going on in underground coal mines safety, training, federal regulation shaped and molded by the emotional tension surrounding what many considered to be too many fatalities in too short a time period. [3] Congressional Response The MINER Act. The Mine Improvement and New Emergency Response Act of 2006, 8 more commonly known as the MINER Act, was enacted in the wake of the mine disasters of 2006 to quell concerns existing on a national level that the coal mining industry, as evidenced by what many deemed a staggering number of fatalities in an extremely short time period, was under regulated, if not entirely unregulated. The MINER Act amended the Federal Mine Safety and Health Act of 1977 (Mine Act) and was, from inception, intended by Congress to improve the safety of mines and mining. 9 Reflecting the first amendment to the Mine Act since the Act s enactment in 1977, the MINER Act introduced a number of mandatory safety provisions directed toward emergency responses to mine 6 See U. S. Dep t of Labor, Mine Safety and Health Admin., Report of Investigation: Fatal Underground Coal Mine Explosion, Darby Mine No. 1 (2006), at 1, The May 20, 2006 disaster would only be the beginning of Kentucky Darby s problems. In February 2009, MSHA filed suit against Kentucky Darby seeking more than $500,000 in unpaid fines stemming from the May 2006 explosion at the Darby Mine. Lexington Herald- Leader, MSHA Sues Darby for Unpaid Fines and Penalties, Feb. 3, In the lawsuit filed by MSHA, MSHA sought to recover $505,012, including unpaid civil penalties and additional penalties..., as well as interest and administrative fees. Id. at 1. 8 Mine Improvement and New Emergency Response Act of 2006, Pub. L , 120 Stat. 493 (2006). 9 Id. 305

6 10.02 ENERGY & MINERAL LAW INSTITUTE accidents and disasters requiring additional self rescuers underground, rescue chambers and tracking systems. 10 While the MINER Act unquestionably introduced forward-thinking precautionary safety measures, particularly in light of the mine tragedies in 2006, the Act also introduced expansive penalty provisions into the Mine Act. Congress created a new type of violation flagrant violations carrying a maximum civil penalty of $220, As Congress new big stick that MSHA would wield quite liberally in the coming years to dole out hundreds of thousands of dollars in assessments, flagrant violations were defined as a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury. 12 [4] 2007 and the Crandall Canyon Mine Collapse. Just as shockwaves from the events of early 2006 began to dissipate and issues of mine safety again returned to the periphery of the national conscience, a new disaster in Utah s coal fields again brought the coal mining industry into the national spotlight. On August 6, 2007, six underground miners at Genwal Resources, Inc. s Crandall Canyon Mine in Emery, Utah, were killed in a coal outburst. Postaccident investigations revealed that roof-supporting pillars failed, violently eject[ing] coal over a half-mile area. 13 Ten days after the initial incident that had claimed the lives of six miners, an MSHA inspector, as well as two mine employees accompanying him, was killed by a second coal outburst during rescue efforts to reach the miners trapped underground Id U.S.C. 820(b)(2)(2006). 12 Id. 13 See U.S. Dep t of Labor, Mine Safety and Health Admin., Crandall Canyon Accident Investigation and Conclusions (2008). 14 Id.; see also U.S. Dep t of Labor, Mine Safety and Health Admin., Coal Mine Safety and Health Report of Investigation, Fatal Underground Coal Burst Accident, August 6 and 16, 2007, Crandall Canyon Mine. 306

7 ENFORCEMENT AND PENALTIES UNDER MINER ACT MSHA s Response to the Increase in Underground Coal Fatalities and the MINER Act. The MINER Act created a new class of violations flagrant violations. MSHA was charged with updating the penalty regulations to comport with the amendments introduced by the MINER Act. MSHA s response, however, arguably exceeded the minor revisions contemplated by Congress and amounted to nothing more than MSHA grasping at the chance to fix something that simply was not broken. [1] Procedure Instruction Letter No In Procedure Policy Letter No , Richard Stickler, Assistant Secretary of Labor for MSHA, articulated the criteria that a citation must satisfy in order to be flagrant, distinguishing between reckless failure violations and repeated failure violations, and announced that [a]ll flagrant violations will be specially assessed. 15 In order to be classified as flagrant, Assistant Secretary Stickler stated that [f]or violations that are the result of reckless failure to make reasonable efforts to eliminate a known violation, the citation must be (i) significant and substantial; (ii) the injury or illness is at least permanently disabling; (iii) the citation or order is an unwarrantable failure; and (iv) the level of negligence is reckless disregard. 16 Procedure Policy Letter No similarly articulated the criteria for repeated failure flagrant violations. For violations that are the result of repeated failure to make reasonable efforts to eliminate known violations, the citation must be (i) significant and substantial; (ii) the injury or illness is at least permanently disabling; (iii) the citation or order is an unwarrantable failure; and (iv) [a]t least two prior unwarrantable failure violations 15 MSHA Procedure Instruction Ltr. No (Oct. 26, 2006), Procedures for Evaluating Flagrant Violations. 16 Id. 307

8 10.03 ENERGY & MINERAL LAW INSTITUTE of the same safety or health standard have been cited within the past 15 months. 17 Through April 20, 2009, MSHA has issued 100 flagrant violation orders in both coal and metal mines. Of those 100 orders, nearly half (46) fall under two specific standards roof control plan violations and accumulations of combustible materials. MSHA issued 26 flagrant violation orders for violations of 30 C.F.R (accumulations) and an additional 20 flagrant violations under 30 C.F.R (a)(roof control violations). 18 [2] MSHA Led the Changes to the Penalty Regulations. Pursuant to the mandate of the MINER Act, Assistant Secretary Stickler also modified the penalty regulations contained in 30 C.F.R. 100, et seq. (2007). Taken on its face, the MINER Act only really required two changes to the penalty regulations to realign the regulations with the newly amended Mine Act: (i) Section 104(d)(1) citations required a minimum fine of $2,000, and (ii) Section 104(d)(2) orders required a minimum assessment of $4,000. MSHA, however, went above and beyond the call of the Miner Act, seizing the opportunity to completely rewrite the penalty regulations. The result, of course, was an unprecedented shift in the mine safety climate and a drastic increase in both the number of penalties assessed and monetary fines associated with those assessments, something the coal mining industry is forced to endure on a daily basis. Penalties have increased by more than six-fold from earlier numbers. Published in the Federal Register, 72 Fed. Reg , on March 22, 2007, the revised penalty regulations substantially increased penalties and enforcement of assessed penalties. The amount of penalties, including 17 Id. Assistant Secretary Stickler also noted that if the violation meets the [specified] criteria it must also be evaluated to determine if it proximately caused, or could have reasonably been expected to cause death or serious bodily injury. A proximate cause is one which directly produces the injury or death and without which the injury or death would not have occurred. Id. 18 See Data Retrieval System for list of penalties in excess of $60,000 and section cited, MSHA Website: 308

9 ENFORCEMENT AND PENALTIES UNDER MINER ACT minimum penalties for Section 104(d) citations, as well as points assigned for negligence, the likelihood of occurrence, severity, and persons potentially affected all of which factor into the amount of an assessment were increased, while incentives to abate a citation in the time afforded by an inspector were decreased from a 30 percent reduction in the amount of the assessment to only 10 percent. 19 [3] The Use of Pattern of Violations. In conjunction with overhauling the penalty regulations, MSHA also took the opportunity to reintroduce a long dormant enforcement practice the pattern review process. 20 On the books since 1990 but placed back on the shelf shortly after its enactment, the pattern process implements reoccurring six-month industry-wide reviews to determine which, if any, mines should be considered for a pattern of violations under Section 104(e). Relying upon a purely mathematical formula, 21 MSHA evaluates mines twice a year to determine if a mine should be placed on a pattern review process. Placement in a pattern review process can have substantial effects, requiring the mine to enter into a significant and substantial ( S&S ) reduction plan, while being closely monitored by MSHA for a 90-day period. 22 Provided a targeted mine can lower it significant and substantial rate to within 125 percent of the national S&S rate, the mine is not placed on a pattern of violations. However, should an inspector find any S&S violations of 19 See 30 C.F.R (d), (e), (f), 100.4(a),(b)(2007). 20 See 30 C.F.R , et seq. (1990). Section provides: This part establishes the criteria and procedures for determining whether a mine operator has established a pattern of significant and substantial (S&S) violations at a mine. It implements section 104(e) of the Federal Mine Safety and Health Act of 1977 (Act) by addressing mines with an inspection history of recurrent S&S violations of mandatory safety or health standards that demonstrate a mine operator s disregard for the health and safety of miners. The purpose of the procedures in this part is the restoration of effective safe and healthful conditions at such mines. 30 C.F.R (1990). 21 Id. at 104.2, (1990). 22 Id. at (1990). 309

10 10.03 ENERGY & MINERAL LAW INSTITUTE a mandatory health and safety standard during an inspection of a pattern mine within 90 days after the issuance of a Notice of a Pattern of Violations, the inspector shall issue a Section 104(e)(1) withdrawal order. Each subsequent significant and substantial finding requires a new withdrawal order. 23 A Section 104(e)(1) withdrawal order requires the closure of that specific area of the mine and will remain in effect until MSHA determines that the violation has been abated. Additional Section 104(e)(1) withdrawal orders will issue if any further violations of an S&S nature are also observed during the course of the same inspection. If a Section 104(e)(1) withdrawal order has been issued, a Section 104(e)(2) withdrawal order will be issued when an inspector finds an S&S violation of a mandatory health or safety standard upon any subsequent inspection if the operator has been placed on the Section 104(e) series. 24 On June 14, 2007, MSHA notified six coal mines and two metal/non metal mines that based upon a review of citations and orders in a 24-month period, the miners were eligible for a pattern of violations finding. Seven mines reduced their violations and were not placed on a pattern of violations finding. 25 One mine closed. In December 2007, a second round of reviews identified 20 mines. 26 All 20 mines reduced their respective S&S violations by 65 percent in the 90-day review period. 27 On June 17, 2008, an additional 16 mines 14 coal and two 23 Id. at 814(d), (e)(1977). 24 Id. 25 News Release, Mine Safety & Health Admin., U.S. Labor Department s MSHA Puts Eight Mine Operators on Notice: Operators Receive Letters Indicating a Potential Pattern of Violations, (June 14, 2007)(available at NR asp). 26 News Release, Mine Safety & Health Admin., Significant Safety Improvements Following Warning Notice to Mine Operators: Second Round of Potential Pattern of Violations Letters Sent to 20 Operators, (Dec. 7, 2007)(available at gov/media/press/2007/nr asp). 27 News Release, Mine Safety & Health Admin., MSHA Puts 16 Mine Operators on Notice for Potential Pattern of Violations: Letters Mark Third Round of Screening of Nation s Mines, (June 17, 2008)(available at NR asp). 310

11 ENFORCEMENT AND PENALTIES UNDER MINER ACT metal/non metal mines received potential pattern of violations notices. 28 One small mine in Tennessee was ultimately placed on a pattern of violations notice, but was subsequently cleared with a clean full inspection. 29 In a fourth round in March 2009, MSHA put 15 mines on notice for a potential pattern of violations. 30 That review process continues. [4] An Increase in the Number of Inspectors and Inspection Hours. Shortly after the MINER Act was signed into effect and perhaps even foreshadowing the Agency s preparation for an unparalleled increase in enforcement action that would follow the Crandall Canyon disaster just one month later, MSHA began to expand its ranks in July In a July 20, 2006 MSHA News Release, the first in a number of recruitment efforts to bolster the Agency s ranks, Acting Administrator for Mine Safety and Health David Dye announced that [MSHA was] interested in hiring individuals who want to dedicate themselves to our mission and help us eliminate hazards that threaten working miners.... This agency needs motivated professionals eager to help us continue to protect the mining industry s number one resource miners. 31 Implicit in Mr. Dye s call to service, however, was the newfound emphasis that the Agency was placing on compelling safety through enforcement. Just over six months earlier, MSHA filed what was dubbed an unusual and [p]recedent-setting suit to force payment of penalties. 32 In February 2006, 28 Id. 29 News Release, Mine Safety & Health Admin., MSHA Issues First-Ever Pattern of Violations Notice: Patriot Mining LLC Failed to Reduce Rate of Significant and Substantial Violations, (Nov. 13, 2008)(available at NR asp). 30 News Release, Mine Safety & Health Admin., MSHA Puts 15 Operators on Notice for Potential Pattern of Violations: Move Marks Fourth Round of Enforcement Initiative by Agency, (Mar. 16, 2009)(available at NR asp). 31 News Release, Mine Safety & Health Admin., MSHA Seeks New Inspectors in West Virginia, Maryland and Ohio, (July 20, 2006). 32 News Release, Mine Safety & Health Admin., MSHA Files Precedent-Setting Suit to Force Payment of Penalties: Injunction Sought Directly against Company Owner, (Feb. 6, 2006). 311

12 10.03 ENERGY & MINERAL LAW INSTITUTE MSHA sought injunctive relief against a mining company and the company s controlling owner to enjoin the operator from failing to pay penalties for future violations... and [requiring him] to post a bond with the court to guarantee future compliance with the law. 33 Mr. Dye, who later that year would extol the beneficial ends that the Agency sought to attain protecting miners and fostering safety cast a rather ominous cloud over the means implemented to achieve that goal: We will use every tool at our disposal to go after operators that refuse to pay their penalties for mine safety violations, and that includes holding the people who control them personally responsible.... The authority to assess and collect penalties is crucial to MSHA s mission of protecting miners safety and health. We asked Congress to dramatically increase the penalties we can assess for egregious safety violations, and today s lawsuit demonstrates that we are serious about exercising our authority to the full extent of the law. 34 Since 2006, MSHA has engaged in unprecedented recruiting of inspectors to put more inspectors in the field than perhaps any time in history. Since July 2006, MSHA has hired 360 new inspectors, for a net gain of 169 full time coal inspectors, increasing the number of coal mine inspectors nationwide to The concomitant increase in inspection hours through 2008 parallels the stark increase in the number of inspectors and is indicative of the emphasis placed by the Agency on safety through enforcement. 33 Id. 34 Id. (emphasis added). 35 MSHA By-The-Numbers, 2008 Powerpoint Presentation, available on-line at

13 ENFORCEMENT AND PENALTIES UNDER MINER ACT Table 1 36 On-site Inspection Hours by Mine Employment Size CY Coal Mines Metal and Nonmental Mines Mine CY CY CY CY CY CY CY CY Employment No Reported Employment 7,047 5,397 4,975 4,937 1,026 1,179 1,328 2, ,933 61,908 64,649 78, , , , , ,888 87,793 86, ,725 42,398 42,122 39,418 43, ,593 69,380 69,357 94,400 17,511 16,645 17,284 20, ,033 49,861 57,339 84,854 22,804 21,536 22,291 27, , , , ,284 24,995 21,209 27,332 35,687 Total hours 398, , , , , , , ,863 Enforcement actions by district are also telling and demonstrate how MSHA has focused its efforts in perceived problem areas. In 2008, District 4, which encompasses southern West Virginia, received 26,584 total citations and orders. District 9, which encompasses 22 of the 50 states, only received 6,737 total citations and orders in See Mine Safety and Health Administration Website, 313

14 10.03 ENERGY & MINERAL LAW INSTITUTE Table 2 37 Citations and Orders Issued by Type of Action Coal Mines CY 2008 #104 (a) #104 (a) 103(k) 104(b) 104(d) 104(g) 107(a) Total District Citations Citations % S&S Orders Orders Citations/ Orders Orders Citations Issued S&S Orders Orders and Orders % , , ,511 2,977 35% , ,536 9,557 37% , ,194 2,912 32% , ,843 5,683 36% , ,360 5,163 34% , ,644 2,253 26% , ,340 1,651 26% , ,864 2,087 43% , ,288 1,039 32% ,459 Total All Districts 103,458 35,481 35% , ,441 Excludes all vacated citations and orders Unquestionably, these events have ushered in a more highly charged atmosphere for mine safety than at any time since 1969 and the passage of the original Mine Act. 37 Id. 314

15 ENFORCEMENT AND PENALTIES UNDER MINER ACT Today s Enforcement Climate in the Wake of the MINER Act. [1] Enforcement Paper Tops 100,000 in the Coal Industry Alone. At the end of 2008, MSHA announced it had issued over 174,000 citations and orders to coal and metal/non-metal mines. Internal statistical data generated by MSHA demonstrates just how significant these changes have been. Table 3 38 The totals, as provided by MSHA, represent an increase of 45 percent from 2000 to 2008 and 25 percent between 2006 and 2008 in the total number of citations and orders issued to all mining operations in the United States. While these increases alone are startling, the overwhelming majority of these increases have come directly from the coal industry Mine Safety and Health Admin., Total Citations and Orders Issued: Both Coal and Metal/Non-Metal Mines, Cal. Yr Cal. Yr Available at msha.gov/ MSHAInfo/FactSheets/MSHAbytheNumbers/CalendarYear/Citations% 20and%20Orders%20Issued.pdf. 39 Mine Safety and Health Admin., Total Citations and Orders Issued: Coal Mines, Cal. Yr Cal. Yr Available at MSHAInfo/FactSheets/ 315

16 10.04 ENERGY & MINERAL LAW INSTITUTE Table 4 40 These totals establish an 84 percent increase from 2000 to 2008 in the number of orders and citations written to the coal industry. A 38 percent increase occurred in 2008 totals compared to 2006 numbers. As shown in Table 4, MSHA wrote over 50,000 more violations in 2008 compared to Not reflected in these raw numbers is the number of increased enforcement actions taken by MSHA. In 2008, in coal alone, MSHA inspectors issued 3,214 elevated enforcement actions (unwarrantable failures, withdrawal orders and flagrant violations). In 2005, the number was 1,914, and in 2000 there were only 1,326 elevated enforcement actions. 41 The percentage of S&S violations has actually dropped in the last few years. In 2008, 35 percent of all violations were designated S&S. In 2000, 42 percent were S&S. 42 Of course while the percentages of S&S citations are down, the total number is up as MSHA wrote almost 50,000 more violations MSHAbytheNumbers/CalendarYear/Citations%20and%20Orders%20Issued.pdf. MSHA Fact Sheet: Total Citations and Orders Issued Coal Mines, CY 2000-CY Id. 41 Mine Safety and Health Admin., Elevated Enforcement Actions: Coal Mine, Cal. Yr Cal. Yr Available at MSHAbytheNumbers/CalendarYear/Elevated%20Enforcement%20Actions.pdf. 42 Mine Safety and Health Admin., Percentage of S&S Citation and Orders: Coal Mine, Cal. Yr Cal. Yr Available at MSHAbytheNumbers/CalendarYear/Percent%20S&S.pdf. 316

17 ENFORCEMENT AND PENALTIES UNDER MINER ACT in 2008 than in Finally, violations per inspection hour dropped in 2008, but remain above 2000 levels. In 2008, there were 0.19 violations written per inspection hour. In 2000, there were only 0.14 violations per inspection hour. 43 [2] Assessments Have Far Exceeded the Increases in the Number of Violations. In 2008, MSHA assessed almost $200 million in penalties. This almost $200 million in assessments is even more incredible when viewed in light of MSHA s predictions in 2007 on what the effect the new penalty regulations would have on the mining industry. At the time of the final rule, MSHA stated, assuming no increase in operator compliance, that assessments would rise from $24.8 million to $69.3 million. 44 The assessed amounts for 2008 are almost three times that amount at $194 million. Table Mine Safety and Health Admin., Violations Per Inspection Hour: Coal Mine, Cal. Yr Cal. Yr Available at MSHAbytheNumbers/CalendarYear/Violations%20Inspection%20 hour.pdf. 44 Final Rule, Fed. Reg., Vol. 72, No. 55, p , Table III-4 (Mar. 22, 1987). 45 Mine Safety and Health Admin., Total Dollar Amount Assessed: Coal and Metal/Non Metal Mines, Cal. Yr Cal. Yr Available at FactSheets/MSHAbytheNumbers/CalendarYear/Assessments%20data.pdf. 317

18 10.04 ENERGY & MINERAL LAW INSTITUTE From 2000 to 2008, there was an increase of 774 percent in assessments. In the last two years alone, assessments have increased 553 percent. Increases have been even more dramatic in coal. Table 6 46 For 2000 to 2008, there has been an increase of 1,251 percent increase in coal assessments. In the last two years alone, coal assessments increased 678 percent. [3] Increase in Elevated Enforcement Actions. As discussed earlier, the increase in elevated enforcement actions has similarly increased. The increase MSHA-wide between 2000 and 2008 was 68 percent, with a seven percent increase between 2006 and Mine Safety and Health Admin., Total Dollar Amount Assessed: Coal Mines, Cal. Yr Cal. Yr Available at MSHAbytheNumbers/CalendarYear/Assessments%20data.pdf. 47 Mine Safety and Health Admin., Elevated Enforcement Actions: Both Coal and Metal/Non Metal Mines, Cal. Yr Cal. Yr Available at msha.gov/mshainfo/factsheets/mshabythenumbers/calendaryear/elevated%20 Enforcement%20Actions.pdf. 318

19 ENFORCEMENT AND PENALTIES UNDER MINER ACT Table 7 48 Elevated enforcement actions in the coal industry demonstrated an even greater increase, reflecting a 142 percent increase from 2000 to 2008, and a 19 percent increase from 2006 to Table Id. 49 Mine Safety and Health Admin., Elevated Enforcement Actions: Coal Mines, Cal. Yr Cal. Yr Available at MSHAbytheNumbers/CalendarYear/Assessments%20data.pdf. 50 Id. 319

20 10.05 ENERGY & MINERAL LAW INSTITUTE [4] Impact of the Federal Mine Safety and Health Review Commission. A vast number of cases have been generated by the record number of violations and assessments. In 2008, MSHA announced that approximately $130 million of the $194 million assessed in one year had been appealed. By April 15, 2009, the rate of cases filed per week was staggering. A total of 8,924 cases were filed with the Commission in In 2007, that number had been 4,108 and just one year earlier the number was 3,357. Through April 11, 2009, a total of 4,698 new cases had been filed in the fiscal year beginning October 1, 2008, keeping the Commission on pace for just under 9,000 this year. 51 The practical implications of this dramatic increase in cases on a Commission that is already stretched thin cannot be understated. The increased number of cases has severely delayed hearing dates, making it not uncommon for a hearing to be scheduled, even in a routine case, more than two years after the assessments were contested Impact on Fatality and Injury Rates. Despite sharp increases in the number of citations and assessments, any expected concomitant drop in injury rates has yet to materialize. To date, some three years after the changes following the 2006 mine disasters, the enforcement-driven means employed by MSHA has yet to deliver the much touted, but equally elusive ends that the Agency has tried to obtain. MSHA s actions, at best, have ensured that a preexisting decline in injury rates dating back to 2000 will continue. At worst, however, MSHA has placed an unprecedented financial burden on an industry already strained from an economic slowdown without delivering the promised benefit of increased industry safety. [1] Fatality Rates. The fatality rate in coal was decreasing in the years prior to After the anomaly of 2006, fatality rates for 2007 and 2008 have continued to 51 Fed. Mine Safety and Health Review Comm n Website, 320

21 ENFORCEMENT AND PENALTIES UNDER MINER ACT decrease. However, despite increased enforcement, the 2005 rate of.0205 has not been achieved, supporting the conclusion that the $155 million in coal assessments in 2008 has not dramatically influenced fatality rates. Table 9 52 The rates in coal and metal/non-metal combined are slightly better. 52 Mine Safety and Health Admin., Mine Fatality Rate: Both Coal and Metal/Non Metal Mines, Cal. Yr Cal. Yr Available at FactSheets/MSHAbytheNumbers/CalendarYear/Fatality%20rates.pdf. 321

22 10.05 ENERGY & MINERAL LAW INSTITUTE Table When an examination is made of rates over a longer period, the numbers show a continued downward trend in place for many, many years. In 1931, there were 1,463 fatalities in the coal industry. In 1980, that number was 133, which equates to a fatality rate of That number has continued to decrease over the past 28 years to the 2008 rate of [2] Non Fatal Days Lost Rates. While Non Fatal Days Lost (NFDL) rates have declined, the decreases continue to mirror trends that were in place prior to Mine Safety and Health Admin., Mine Fatality Rate: Coal Mines, Cal. Yr Cal. Yr Available at CalendarYear/Fatality%20rates.pdf. 54 National Mining Association, Mine Safety and Health at a Glance, (updated April 2009). 322

23 ENFORCEMENT AND PENALTIES UNDER MINER ACT Table The Non Fatal Days Lost Rates for coal reflect similar decreases in rates reflective of earlier downward trends. 55 Mine Safety and Health Admin., Mine Non-fatal Days Lost: Both Coal and Metal/Non Metal Mines, Cal. Yr Cal. Yr Available at FactSheets/MSHAbytheNumbers/CalendarYear/NFDL%20Rate.pdf. 323

24 10.05 ENERGY & MINERAL LAW INSTITUTE Table Additional time is needed to follow these rates and further determine if the increased enforcement has had any causal effect, or if the changes are merely a continuation of downward trends that can be traced to the pre-2006 safety climate. 56 Mine Safety and Health Admin., Mine Fatality Rate: Coal Mines, Cal. Yr Cal. Yr Available at CalendarYear/NFDL%20rates.pdf. 324

25 ENFORCEMENT AND PENALTIES UNDER MINER ACT [3] All Injury Rates. The final area to examine is rates for all injuries. Table The rates for 2008 show a consistent decline since 2000, a trend that has only continued in the coal industry. 57 Mine Safety and Health Admin., All-Injury Rate: Both Coal and Metal/Non Metal Mines, Cal. Yr Cal. Yr Available at FactSheets/MSHAbytheNumbers/CalendarYear/All-Injury%20Rates.pdf. 325

26 10.06 ENERGY & MINERAL LAW INSTITUTE Table When a longer period is used, the result are even more dramatic. Prior to 1978, only disabling injuries were tracked. In 1931, there were 79,421disabling injuries in coal. By 1980, that number dropped to 22,723, which is a rate of injury per 20,000 employee hours. In 28 years, that rate has fallen to Conclusion. The past three years of stepped-up MSHA enforcement have brought record numbers of written violations and assessments. MSHA s enforcement crusade waged in the name of reestablishing mine safety has dramatically increased litigation and generated hours of administrative proceedings, but has yet to demonstrate any pronounced impact on individual miner safety. 58 Mine Safety and Health Admin., All-Injury Rate: Coal Mines, Cal. Yr Cal. Yr Available at CalendarYear/All-Injury%20Rates.pdf. 59 National Mining Association, Mine Safety and Health at a Glance, (updated April 2009). 326

27 ENFORCEMENT AND PENALTIES UNDER MINER ACT Mine closures and layoffs are becoming more common, with the cost of MSHA compliance adding to the financial pressures already confronting the coal industry. With increases in penalties in the thousands of percentage points, accident rates continue the same steady decline that has been occurring since 2000, a trend that has arguably continued in spite of, rather than because of, any increase in the total number of citations issued or penalties assessed. Strong arguments can be made that enforcement has gone too far. Rumors abound of quotas that MSHA inspectors must meet or numbers of violations that inspectors must write per mine visit. While MSHA denies this, such allegations are currently the subject of federal litigation in Illinois. 60 MSHA has acknowledged using accountability employees to review citations and inspector notes in all Districts to examine uniformity in enforcement. Close monitoring will unquestionably be needed in the coming years to determine if the current regulatory and enforcement scheme is the best one to protect miners, especially since the prospect of a Supplemental MINER Act with even greater penalties remains a not too distant possibility. 60 See Am. Coal Co. v. Mine Safety and Health Administration, No. 3:08-CV-814-MJR/ CJP (S.D. Ill. 2008). 327

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