MSHA INSPECTIONS AND PROCEDURES Updated 8262010 Class Agenda

MSHA INSPECTIONS AND PROCEDURES Updated 8/26/2010

Class Agenda o o o Terminology and Definitions Understanding an MSHA Citation/Order Traveling with an Inspector Note Taking ( The 5 “W’s”) Pre and Post Conferences Citation Scenario (Class Activity)

MSHA Flow Chart: o Assignment of Inspectors: - Underground = quarterly [4] - Surface = bi-annually [2] o Pre-Inspection Conferences. o Inspections: - Includes all production shifts (day, afternoon, midnight).

MSHA Flow Chart (cont. ) o Issuance of alleged violations such as Citations, Orders, Safeguards, etc. o Post-Inspection Conferences o Mine’s Request for Informal Safety Conference [discretionary] • 10 -day informal conference (30 C. F. R. § 100. 6) • Enhanced Conferencing Procedures (PIL 09 -III-03) • Counsel optional, but not necessary

MSHA Flow Chart (cont. ) q Immediate Contest of Citation q 29 C. F. R. 2700. 20 permits filing a “Notice of Contest” within 30 days of receipt of citation, order, or modification. q Generally prior to assessment. q Disputing the facts/gravity of the citation or order (i. e. the “paper”). q File an immediate contest where time is of the essence. q Penalty Contest Following Assessment q Contest both the facts/gravity of the citation (“the paper”) and the penalty assessment. q Most citations contested in this fashion. q MUST check citations/orders that have already gone to immediate contest.

MSHA Flow Chart (cont. ) q Discovery q Informal Fact Investigation q Responses to Written Interrogatories q Depositions q Administrative Hearing q Similar to civil trial q On the Record/Testimony q Appeal

Mine Safety & Health Act of 1977 & MINER Act of 2006

MSHA’s Authority The Federal Mine Safety & Health Act of 1977 (the “Mine Act”) authorizes the U. S. Secretary of Labor (the “Secretary”) to make frequent inspections and investigations in the mining industry (i. e. , coal, quarries, gold, silver, etc. ) to establish compliance of the mandatory safety and health standards and regulations promulgated pursuant to the Mine Act. Therefore, the U. S. Department of Labor, Mine Safety & Health Administration (“MSHA”) conducts quarterly inspections of each underground mine and biannual inspections of each surface mine.

General Types of Violations: o 104(a) Citation o 104(d)(1) Citation (unwarrantable) o 104(d)(1) Order (unwarrantable) o 104 (d)(2) Order (unwarrantable) o 104(b) Order (failure to abate) o 105(c) Discrimination o 107(a) Order (Imminent Danger) o 110 Special Investigation: Civil or Criminal o 314(b) Notice to Provide Safeguard

Generally o o 104(a) Citation – “Primary tool for obtaining compliance. ” Inspector believes that the mine has violated the Mine Act or a mandatory health or safety standard, rule, order, or regulation. 104(d)(1) Citation - Inspector believes that there has been a violation of a mandatory health or safety standard, finds that, while the conditions created by such a violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards. 104(d)(1) Order - Within 90 days after the issuance of a 104(d)(1) citation, Inspector finds another violation of any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply. Inspector now issues an order requiring the operator to cause all persons in the area affected by such violation (except those necessary to correct) to be withdrawn from, and to be prohibited from entering, the affected area. 104(d)(2) Order – Inspector has found upon a subsequent inspection the existence of violations similar to those that resulted in the issuance of the withdrawal order under 104(d)(1), and caused by operator’s unwarrantable failure. Withdrawal orders will be issued until such time as an inspection of such mine discloses no similar violations.

Generally o 104(b) Order – On a follow-up inspection, the Inspector finds (1) that a violation has not been totally abated within the period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the abatement should not be further extended. Results in withdrawal from affected area. o 314(b) Safeguard – Permits an authorized representative to issue a situation-specific standard to minimize hazards with respect to transportation of men and materials – Applies to hoisting and mantrips. n n Anticipated that the FMSHRC will issue a 2 -1 decision, finding that citations issued from safeguards can be deemed S&S. Secretary v. Wolf Run Mining. Docket No. WEVA 2008 -804 (decision forthcoming). Safeguards cannot be formally contested until a citation is issued. Jim Walter Resources v. Secretary, Docket No. 96 -81 -R (March 20, 1996).

Special Litigation o o o 105(c) – Alleged discharge or discrimination against any miner, representative of miners or applicant for employment because such miner, representative of miners or applicant for employment has filed or made a complaint of an alleged danger or safety or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer or has instituted/been a part of MSHA proceeding. 110(c) – Imposes civil and/or criminal liability upon any director, officer, or agent of a corporation who knowingly authorized, ordered, or carried out a violation of a mandatory health or safety standard or knowing violation or failure or refusal to comply with any order or final decision. 110(f) – Imposes criminal liability upon anyone who makes a false statement, representation, or certification on any document required to be kept under the Mine Act (up to 5 -years imprisonment, $10, 000 fine, or both).

Section 104(e) - Pattern of Violations q Office of Assessments reviews each operation’s 24 -month violation history at least once per year. q Office of Assessments uses its own criteria to identify operators deemed “recalcitrant” and submits names to the appropriate District Manager. q 2 part screening model – Notice of “Potential” POV/Notice of POV. q Generally based on the number of S&S citations/orders issued during the 24 -month review period, number of “elevate enforcement” actions, and the number of S&S final orders -- all of which are higher than industry average. q Operations identified for enforcement are given an opportunity to institute a plan of corrective action, followed by a 90 -day review period. Otherwise, MSHA will reevaluate the operator in 60 -days. q Operations that fail to reduce the number of S&S citations/orders by 30% or below industry average during the review period are given a Notice of POV, and issued withdraw orders in lieu of S&S citations, until a complete inspection reveals no S&S violations!

Immediate Reporting – 30 C. F. R. § 50. 10 o Must notify MSHA immediately “at once and without delay” within 15 minutes of an “accident. ” n “Once the operator knows or should know that an accident has occurred” o One call does not do it all! n MSHA: 1 -800 -746 -1553 n West Virginia: 1 -866 -987 -2338 n Kentucky: 1 -877 -MINE-911

Due Process: o It is important to remember that although Mine Operators are held to the “strict liability” standard, MSHA has the burden to actually prove the existence of a violative condition. o Therefore, Mine Operators, have the right of due process to contest any alleged violation issued by MSHA prior to payment of the assessed civil penalty!

Immediate Reporting – 30 C. F. R. § 50. 2 n n n A death of an individual at a mine; An injury to an individual at a mine which has a reasonable potential to cause death; An entrapment of an individual for more than 30 minutes or which has a reasonable potential to cause death; An unplanned inundation of a mine by a liquid or gas; An unplanned ignition or explosion of gas or dust; In underground mines, an unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery; (W. Va. - all fires 5 minutes) An unplanned ignition or explosion of a blasting agent or an explosive; An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage; A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour; An unstable condition at an impoundment, refuse pile, or culm bank which requires emergency action in order to prevent failure, or which causes individuals to evacuate an area; or, failure of an impoundment, refuse pile, or culm bank; Damage to hoisting equipment in a shaft or slope which endangers an individual or which interferes with use of the equipment for more than thirty minutes; and An event at a mine which causes death or bodily injury to an individual not at the mine at the time the event occurs.

Immediate Reporting – West Virginia o Same as MSHA’s “Dirty Dozen” n Caveat: Any “unplanned fire in or about a mine not extinguished within 5 minutes of ignition. ” o Serious personal injury n Quirk in W. Va. Law - W. Va. C. S. R. § 36 -19 -3. 3 o An event at the mine which causes bodily injury to an individual which requires such individual to be admitted to a medical facility overnight for reasons other than strains, sprains, or observation as determined by a physician. n Serious personal injury did not make the “ 15 minute” rule, but still required to “immediately report” to District Inspector or Regional Inspector at Large. o Requirements to be deemed specific: n n Name of the individual and organizational affiliation; and Approximate dates and times of incident(s).

Immediate Reporting – Kentucky o Required to report within 15 minutes of “actual knowledge” n Serious physical injury (injury which has a reasonable potential to cause death); n Loss of life; n Fire; n Explosion; n Entrapment of an individual for more than thirty (30) minutes; or n Inundation of a mine by water or gases. Kentucky S. B. 200 (2006), K. R. S. 352. 180.

Penalties The MINER Act of 2006 “The New World Order”

Civil Penalties q The minimum penalty for a section 104(a) citation is now $112. 00 (without “good faith” reduction). q $60 technical citation penalty is gone for citations issued after April 23, 2007. q q q The minimum penalty for any citation or order issued under section 104(d)(1) is now $2, 000. The minimum penalty for any Order issued under section 104(d)(2) is now $4, 000. The maximum penalty for any citation or order is now $70, 000.

Penalties (cont. ) q Any Operator who willfully violates a mandatory health or safety standard, or knowingly violates or fails or refuses to comply with any order issued under Section 104 and Section 107, or any order incorporated in a final decision (except an order incorporated in a decision under Section 110 or 105(c) ), shall upon conviction, be punished by a fine of not more than: q $250, 000 or by imprisonment not more than 1 yr. or both q Except if the conviction is for a violation committed after the first conviction of such Operator under the Act, then by a fine of $500, 000 or by imprisonment for not more than 5 yrs. or both.

Penalties (cont. ) Flagrant Violations q The definition of “flagrant” means 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. q Violations under this section that are deemed to be flagrant may be assessed a civil penalty of not more than $220, 000.

Understanding the MSHA Citation/Order

The MSHA Citation/Order: o General Information (Sections 1 – 7 including Date, Time, Citation/Order #, Served to, Operator, Mine ID #). o Condition or Practice (Sections 8 and 8 a): Inspector’s description of the alleged facts surrounding the alleged violation (which should not be assumed that are correct) and if alleged violation is based upon a 103 g complaint. o Violation (Section 9): Health/Safety/Other violation and Section of the Code of Federal Regulation that is being violated according to the Inspector.

o GRAVITY (Section 10): An evaluation of the seriousness of the alleged violation as measured by the likelihood of the occurrence of the event, the severity of the illness/injury if the event would occur and number of persons affected if the event occurred. n What is the “seriousness” of the alleged violation and how did the Inspector arrive at his conclusion?

Gravity A. Injury or illness (has) (is): o Likelihood of occurrence: defined by 5 different levels or possibilities of occurrence: -No likelihood; -Unlikely; -Reasonably Likely; -Highly Likely; or -Occurred.

Gravity: B. Injury or illness could reasonably be expected to be: o Severity of injury or illness is defined by 4 different levels of severity if the event or illness occurred or were to occur. q No lost work days; q. Lost workdays or restricted duty: any injury or illness which would cause the miner to lose one full day of work or more after the first day of the injury or illness or which could cause one full day or more of restricted duty; q Permanently disabling: any injury or illness which would be likely to result in the total or partial loss of the use of any member or function of the body; or q Fatal: any work related injury or illness resulting in death, or which has a reasonable potential to cause death.

Gravity: C. Significant and Substantial (“S&S”) o “S&S” is defined as a more serious violation that could significantly and substantially contribute to the cause and effect of a mine safety or health hazard. o That it is reasonably likely that the contribution by the violation to the hazard will result in an injury or illness of lost workdays or restricted duty or greater.

The Secretary must prove the following to uphold “S&S”: 1. A violation of a mandatory safety and health standard; 2. A discrete safety hazard (a measure of danger to safety and health) contributed to by the violation; 3. *A reasonable likelihood that the hazard contributed to will result in an injury; 4. *A reasonable likelihood that the injury will be of a reasonably serious nature. Secretary of Labor v. Mathies Coal Co. , 6 FMSHRC 1 (1984). (*designates that these two are crucial elements)

Standard o Must be a violation of 30 CFR Parts 47, 48, 49, 50. 10, 62, 70, 71, 72, 75, 77, or 90. o Cannot be a violation of Parts 40, 41, 43, 44, 45, 50, or Title I of the Act. o Must be reasonably likely to occur. o Must be at least lost work days or restricted duty.

Reasonable Likelihood o A condition or practice exists that contributes to a hazard where there is a reasonable likelihood that an injury or illness will occur of a reasonable serious nature if the condition isn’t corrected. Secretary of Labor v. Nat’l Gypsum Co. , 3 FMHSRC 822, 825 (1981). o “Reasonably Likely” does not mean “more probable than not. ”

Mitigating Circumstances o Actions which an operator has taken to prevent, correct, or limit exposure to mine hazards. o The mine operator or contractor might withdraw equipment, personnel and/or immediately proceed to correct the violation. o None of those actions taken after they have been cited alters the negligence evaluation made by the inspector when the violation was cited.

Number of Persons Affected “. . . the number of persons who were actually injured or became ill as a result of the hazard caused by the violation or the number of persons who could or would be affected if the anticipated event occurred. ” Identify the harmful event, then count the number of persons harmed if the event occurred!

Negligence (Section 11): The conduct by an Operator, either committed or omitted, which falls below a standard of care to protect persons against the risk of harm. When applying this criterion, MSHA considers actions taken by the Operator to prevent or correct conditions or practice which caused or allowed the violation to exist. There are 5 levels of a standard of care:

Levels of Negligence o None – The operator exercised diligence and could not have known of the violative condition or practice. o Low – The operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances. o Moderate – The operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.

Levels of Negligence (cont. ) o High – The operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances. o Reckless Disregard – The operator displayed conduct which exhibits the absence of the slightest degree of care.

Negligence v. Mitigating Circumstances o o o o How obvious or extensive is the violation? How long has it existed? Has the area been examined? (Who? ) Is an agent of the operator in the area? (How long & who? ) Was the condition reported? (When? ) Is the condition recorded? (How long? ) Has the operator been warned? (When? ) Does the condition create a high degree of risk to the health or safety of miners? Was the individual a supervisor? Were incomplete attempts made to correct the condition? Has the condition been cited before? Is there a recent history of similar violations? Was company policy violated? Is the condition justifiable or excusable? Did the operator display intentional misconduct or a serious lack of reasonable care?

Unwarrantable Citations and Orders In 1988, the Federal Mine Safety and Health Review Commission adopted new language to describe operator conduct which constitutes an unwarrantable failure to comply for purposes of Section 104(d) of the Mine Act. The Commission held that a violation is caused by an unwarrantable failure if the operator has engaged in "aggravated conduct constituting more than ordinary negligence. " “[v]iolative condition or practice was not corrected prior to issuance of citation order because of indifference, willful intent, or serious lack of reasonable care. Buck Creek Coal, Inc. v. Federal Mine Safety and Health Admin. , 52 F. 3 d 133 (7 th Cir. 1995).

What is “aggravated conduct? ” 1. 2. 3. 4. 5. 6. 7. 8. The violative condition or practice was obvious or extensive; The violative condition or practice had existed for a period of time; Similar violations have been issued at the mine or to the contractor in the recent past; An agent of the operator or contractor had conducted an examination or had been in the area, or was aware of the existence of the condition; The violative condition or practice had been reported to the operator or contractor who then allowed it to exist, without correcting or adequately addressing the problem, for a period of time; The individual who committed or allowed the condition or practice to exist was a supervisor or an agent of the operator or contractor; Reasonable efforts were not made by the mine operator or contractor to correct the violative condition or practice; and Other factors, not enumerated above, resulted in a negligence evaluation by the inspector of “high” or “reckless disregard. ”

Additional Relevant Sections o o o Area or Equipment (Section 15); Termination Due Information (Section 16); Action to Terminate/Terminated (Sections 17 -18); Type of Inspection (Section 19); Inspector signature and identification number (Sections 2223); o Subsequent Action/Continuation (pages 2+).

Abatement of an alleged violation is defined in the Act as correcting the alleged violative condition that was cited by the Secretary’s duly authorized representative, coal mine inspector (DAR or CMI are also known as an MSHA Inspector) during an inspection. o MSHA Inspector’s do NOT have the authority to direct an Operator “how to abate” an alleged violation.

Penalty Reduction o Easiest way to reduce penalty assessment is to receive ZERO violations. o However, the “damage” can be reduced by “moving the boxes. ”

Exercise – Reduce the Penalty o Example Citation: n Mine Points -15 n Controller Points - 10 n History Points – 8 n Repeat Violator Points – 0 n Negligence (High) – 35 n Likelihood of Occurrence (Highly Likely) – 40 n Severity (Fatal) – 20 n Persons Affected (1) – 1 n TOTAL POINTS – 129 n TOTAL GROSS PENALTY – $27, 959. 00

MSHA Conversion Tables – 30 C. F. R. § 100. 3

MSHA Conversion Tables – 30 C. F. R. § 100. 3

Exercise – Reduce the Penalty Example of possible outcomes: o Highly Likely to Unlikely (remove S&S) – Subtract 30 points – Penalty becomes $2, 536. 00 (99 points) o High Negligence to Moderate Negligence – Subtract 15 points – Penalty becomes $764. 00 (84 points) o Fatal to Permanently Disabling – Subtract 10 points – Penalty becomes $343. 00 (74 points). Movement on 1 box would reduce penalty by approximately 90% Movement on 2 boxes would reduce penalty by nearly 97% Movement on 3 boxes would reduce penalty by 98. 8%

TRAVELING WITH AN INSPECTOR

Your Role During An Inspection: n Your role is that of the Operator’s representative and guide while the Inspector is on the property. n DOCUMENT EVERYTHING DURING THE INSPECTION. n Your demeanor with the Inspector may affect the end result: n “Be nice…; ” n Be respectful, non-confrontational and ask relevant questions; n Knowledge of the subject matter is important and vital.

Your Role During An Inspection n NEVER provide unsolicited information: n Silence is the Golden Rule; n Do not “assist” with the Inspector’s job; n What you say will be used against you.

Your Role During An Inspection n If necessary, provide “limited” information to the Inspector. n Always remember a violation is an “alleged” violation until proven. n Do not rely on memory, but document everything: n There is a lapse of time until an informal safety conference and/or hearing; n Your credibility may be at issue if you rely on memory vs. accurate notes.

Your Future Role o The accuracy of your factual notes will assist in safety conferences and/or hearings. o You may attend a safety conference on behalf of your mine. o You may attend and participate in court ordered or voluntary mediation. o You may be deposed as a witness by the Secretary of Labor’s attorney. o You may testify at a hearing.

Your Tools o o Notepad Pens/pencils Measuring tape Knowledge of the terms on the face of an alleged Citation/Order (e. g. , Gravity, S&S, etc. ). o Photographs and/or videos. o Federal and State statutes/regulations. o Mine Map

Your Purpose When Traveling With an Inspector o Realize this is not a “friendly” visit! o DOCUMENT EVERYTHING DURING THE INSPECTION; o Take detailed notes at ALL times including measurements, readings, objective test results, witnesses, etc. ; n e. g. depth of accumulations, temperature of belt structure.

o NEVER leave the Inspector during an inspection!!!!

Your Notes o Take detailed notes which include FACTS and not personal opinions; o Remember your notes are being taken in anticipation of potential litigation and is a “legal work product”; NEVER provide copies of your notes to any Inspector; o Your notes should ALWAYS include the five “W’s; ” n n n Who; What; Where; When; and Why

Items the Inspector is required to Document o What time was the violation observed? o What is the violation? (Include distances and measurements) q Where is the violation located or observed? q Who knew the violation existed? (Include name(s) and how this is evidenced)

Inspector’s Notes (cont. ) o How long has the violation existed? q How is this evidenced? Is it recorded in a required exam book, extensiveness, experience of the inspector? q How many people are exposed to the condition/practice (number of persons potentially affected)?

Inspector’s Notes (cont. ) o If an accident should occur because of this type violation, how serious would it be? o What is the likelihood that this type accident will occur at this mine? Why? (nature of the mine, geological conditions, methane liberation, and other physical factors)

WHAT SHOULD BE IN YOUR NOTES?

WHO: o Individuals involved with the inspection: o Persons traveling with the Inspector; o Individuals the Inspector talks with during inspections: o Names of all parties present in all locations; o Focus of Inspector’s discussions with individuals; o Location of Inspector’s conversations; o Any other witnesses;

WHO: o Individuals taking measurements, photographs, etc. , during the inspection; o Individuals involved in pre- and post-inspection conferences at the mine site. o Did you ask the inspector relevant questions and did the inspector respond?

WHO: o Section 103(f) Participation of representatives of operators and miners in inspections… o “…Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any coal or other mine…for the purpose of aiding such inspection and participation in pre- and post-inspection conferences held at the mine… n n “To the extent that the Secretary or authorized representative of the Secretary determines that more than one representative from each party would further aid the inspection, he can permit each party to have an equal number of such additional representatives…” Do not have to pay a second hourly inspector escort for inspection time.

WHAT: o Any measurements, readings or “objective” tests taken by Inspector/Operator/Others: o Ask Inspector’s intent; q Example: What he is measuring and why?

WHAT: o Write down all information: § Your Company attorney will decide which notes are relevant/helpful; o Type of tool(s) used to conduct measurements, if any (e. g. , stepping off verses measuring stick); o Inspector’s findings, if any.

WHAT: o Take measurements and record your results: § If results conflict with Inspector’s, question difference and document responses; o Make actual drawings of scene(s) of inspection site; o Take photographs and/or videos; and o Document any mitigating circumstances.

WHERE: o Location at the mine where the alleged violation is issued (ex: spad number, at the crusher, outside, prep plant, etc. ); o Document “who and what” above.

WHEN: o Accurate time frames are vital. n Date(s) and time(s): o Time Inspector arrives at mine; o Time of pre-inspection conference at mine; o Travel time to the mine site; o Time you leave specific mine site; o Length of time Inspector spoke with witness (who/when).

o Accurate time frames can indicate the length of time the Inspector was at a specific mine site location to evaluate an alleged violation prior to issuance.

WHY: o You have the right to ask questions of the Inspector! n n Authority granted under § 103(f) of the Mine Act. “All parties shall be afforded the opportunity to review with MSHA each citation and order issued during an inspection. ” Consolidation Coal v. Secretary of Labor, Case No. 19810326 (March 26, 1981). o Be professional and non-confrontational. o DO NOT OFFER UNSOLICITED INFORMATION: n Remember: What you say WILL be used against you! o DOCUMENT ONLY THE FACTS and not your personal opinions. o Ask relevant questions and know the definitions regarding the face of the Citation/Order.

Pre & Post Conferences o Make notations regarding the pre-/post- conference with Inspector. o Immediately review your notes for voids: n Individuals/witnesses involved with inspection; n Discussions held with individuals/witnesses; n Locations of Inspector’s conversations;

Pre & Post Conferences n review CFR reference in alleged violation(s); n review all measurements, gather photographs, drawings, readings, videos, etc. ; and n review tools used by Inspector to assess measurements, etc. , (if any);

Pre & Post Conferences n n persons present during measurements; review actual drawings of mine site(s)/location(s); review times/dates; review pre-conference discussions with Inspector; and n Inspector’s conversations with Operator’s representative.

Pre & Post Conferences o Make notations regarding your assessment of weaknesses/strengths of the alleged violation(s) and why: n Subjective notes that may assist with safety supervisor for safety conference or Company attorney for hearing preparations. o Have knowledge of the actual violation format and the criteria that the MSHA Inspector must have present to issue the alleged violation!