Here We Go Again—The Robert C. Byrd Mine Safety Protection Act
Author: Gwendolyn K. Nightengale (Washington DC)
Published Date: July 21, 2015
For the fourth time since the Upper Big Branch coal mine explosion in April 2010, a Congressional bill proposes to further amend the Federal Mine Safety and Health Act of 1977. The Robert C. Byrd Mine Safety Protection Act was first introduced on December 3, 2010, and again on April 15, 2011, and March 21, 2013, without variation in the proposed law and without success. Congress has historically enacted legislation after major coal mine disasters. In the early days, there was relatively little regulation, but over the years legislation has led to strong controls and enforcement. Today, the mining industry operates under very stringent and comprehensive oversight. The 2015 Byrd bill proposes changes that will increase burdens on mines of all types without material enhancement of mine safety and health. Passage of the bill seems no more likely now than when it was previously introduced.
Legislation from Major Disasters
In 1907, an explosion at a mine in Monongah, West Virginia caused the deaths of 362 coal miners. Two years later, 259 miners died in a fire at the Cherry Mine in Illinois. In response to these disasters, Congress established the Bureau of Mines to research ways of achieving safer mining conditions.
After a 1951 explosion at the Orient No. 2 coal mine in Illinois took the lives of 119 miners, Congress passed the Federal Coal Mine Safety Act of 1952. This legislation mandated federal inspections and established provisions for violation notices, orders to withdraw miners, and civil penalties for non-compliance.
In November 1968, a coal mine explosion in Farmington, West Virginia killed 78 miners. This prompted the Federal Coal Mine Health and Safety Act of 1969, which created detailed mandatory standards for coal mines and a vigorous enforcement scheme that included civil penalties and penalty closure orders. The Act required four annual federal inspections for all underground coal mines and two for surface coal mines. In addition, the Act imposed civil penalties for all violations and criminal penalties for willful violations.
Following the death of 26 miners in an explosion at the Scotia Coal Mine in Kentucky in 1976, Congress passed the Federal Mine Safety and Health Act of 1977 (the Mine Act). The Mine Act expanded on the provisions of the 1969 Act and added a provision requiring closure orders to be issued to mines determined to have a “pattern of violations.” Almost three decades later, an explosion causing 12 fatalities at the Sago Mine in West Virginia produced the Mine Improvement and New Emergency Response Act of 2006, which amended the Mine Act to increase emergency response requirements, greatly elevate civil penalties for “flagrant violations,” and add mandates for reporting accidents to the government within 15 minutes.
The 2015 Byrd Bill
Although there has been a marked decline in overall mining deaths and disasters throughout the years, an increase in metal/nonmetal mine fatalities in 2013 and 2014––notwithstanding a contemporaneous decrease in coal fatalities––has spurred elevated agency oversight and provided further incentive to those seeking tougher legislation in the form of the 2015 Byrd bill. The 2015 Byrd bill is tougher than any previous version in that it does not carry forward provisions that would have excluded surface nonmetal mines.
The 2015 Byrd bill proposes the following for all mines:
Inspections & Penalty Assessments
Mandates that inspections by the Mine Safety and Health Administration (MSHA) occur during all shifts and days of the week
Revises “pattern of violations” (POV) enforcement, including a new prohibition against terminating the employment of a miner when a mine is under POV, and for the three following years, absent a sufficient performance related cause
Authorizes injunctive relief for conduct that constitutes a “continuing hazard to the health or safety of miners, including violations” of the Act
Revokes previously approved mining plans and the issuance of withdrawal orders for materially changed circumstances or hazards to miners
Establishes a lower standard for determining what constitutes a “significant and substantial” violation
Requires the Federal Mine Safety and Health Review Commission to use MSHA’s civil penalty formulas as a minimum standard
Compels the accrual of interest on proposed civil penalties contested by an operator to be paid on any amounts determined by final Commission order
Directs MSHA to close a mine that does not pay a civil penalty within 180 days after the assessment becomes a final order
Elevates the maximum civil and criminal penalties for mines, mine operators, and their agents for violations of health and safety standards, advance notice of inspections, and acts of retaliation for protected safety activity
Establishes an independent investigation panel chaired by the National Institute for Occupational Safety and Health (NIOSH) for accidents with three or more deaths, or other events that NIOSH may believe are sufficiently severe to warrant a special panel
Enhances MSHA’s subpoena power during investigations and inspections
Prohibits attorneys from representing both mine operators and miners without the miner’s knowing and voluntary waiver of all conflicts of interests
Miners’ Rights and Retaliation Protections
Extends the statute of limitations for filing a retaliation complaint from 60 to 180 days and grants miners the right to seek punitive damages for such claims
Requires the immediate temporary reinstatement of a miner pending litigation on a retaliation claim, even if MSHA has declined to provide representation for the miner
Allows victims and family members to designate a miner’s representative
Authorizes felony criminal sanctions for persons who knowingly retaliate against miners who have provided information to MSHA or other law enforcement officials
Requires mine operators to provide full pay to miners for a maximum of 60 days when MSHA temporarily closes a mine for safety violations
Increases annual refresher training from eight to nine hours and includes additional training on miners’ rights and protections
All of these changes have been proposed notwithstanding the fact that the number of active coal mines has declined drastically and safety in all mines has continuously improved. Moreover, even without new legislation following the April 2010 Upper Big Branch explosion, MSHA developed and implemented multiple enforcement tools under existing legislation including a monthly impact inspection program for operators that come under scrutiny, escalation of POV enforcement, and special emphasis on “Rules to Live By.” The agency also launched a campaign to increase the awareness and protection of miners’ rights under the Mine Act.
Deaths and serious injuries in recent years have most often followed individual missteps or failures to take adequate precautions. Addressing these issues with training, oversight, and reminders is the biggest safety challenge for mine operators today. Steadily decreasing total injury rates for all mines and record low fatalities in coal mining demonstrate that progress is being made. MSHA already has the enforcement tools and oversight it needs to carry out its mandate—new legislation is not the answer.
Gwen Nightengale advises and represents management on workplace safety and health issues nationwide. She regularly represents mining companies in the coal, metal, stone, sand and gravel industries in enforcement proceedings before Administrative Law Judges of the Federal Mine Safety and Health Review Commission. She litigates formal contests of agency enforcement actions and employment discrimination claims based on safety activity. Gwen advises companies on regulatory compliance, assists...