Aggregate Producers — 2009 Legislative Watch

By John J. Hickey and Katie Jeremiah

It has been three years since the tragic Sago mine disaster took the lives of twelve miners, and lawmakers and government agencies are more concerned than ever about mine safety.

Quarry operators face increased regulatory enforcement by the Mine Safety & Health Administration ("MSHA") and should prepare for more stringent mine safety legislation expected later this year.

Regulatory Enforcement

Enforcement of the 2006 "MINER Act" has become the top priority for MSHA. Since 2006, MSHA has hired 322 enforcement personnel, and citations for mine safety regulation violations have increased by 98 percent. Although MSHA's efforts appear to be working (the injury rate has declined by 24 percent), many interested organizations and mine operators claim that the resulting financial burden is too heavy.

Especially alarming is the increase in high-dollar citations. While penalty assessments formerly were in the range of $60 to $500, many local mine operators have recently been assessed penalties ranging from $12,000 to $82,000.

Operators are also concerned about the inordinate delay now common in contesting a citation. There are so many appeals today — because of the increase in citations — that cases may take years to be heard.

New Legislation

In 2008, lawmakers proposed the "S-MINER Act" as a comprehensive mine safety law, claiming that the 2006 MINER Act focused too narrowly on emergency response. While the S-MINER Act did not become law, it will be introduced again this year and is very likely to pass under the current Congress.

Although the S-MINER Act is a response to underground coal mine disasters, above-ground quarry operations will be equally affected. Above-ground quarry operators will have to implement protocols typically reserved for underground operations, even though such protocols may serve no useful purpose above ground.

Mine operators should expect:

• Higher Penalties
  The Act will mandate minimum penalties of $500, $1,000, or $50,000, depending on whether MSHA deems the violation to be a "general," "significant and substantial," or "pattern" violation. It will also increase the maximum penalties for each type of violation (to $100,000, $150,000, and $250,000, respectively).
  
  The significance of the increase in penalties is amplified when coupled with the fact that inspections rarely result in a single citation. In addition, employees will be faced with individual criminal and civil liability (which might include jail time) for any knowing and willful violations. Since MSHA is required to inspect each mine at least twice a year (four times for coal mines), many operators feel that the potential for severe penalties is too great.
  
  
• Total Mine Shutdown
  Under the S-MINER Act, MSHA will have the authority to shut down an entire mine indefinitely until it decides that all identified violations have been corrected. Mere isolation of the affected area of a mine will no longer be an option.
  
  
• No Discretion
  Currently, MSHA has discretion when it assesses penalties to consider the effect on the operator's ability to continue in business. The S-MINER Act will eliminate that discretion and will also require higher penalties for large operators in order to deter future noncompliance.
  
  
• Tighter Dust Standards
  The S-MINER Act will reduce the limits of respirable dust to half the original limit.

What Next?

These are just a few of the major changes on the horizon. Mine operators need to be more aware than ever of the existing requirements and the coming changes. Questions or concerns about MSHA's enforcement practices or the S-MINER Act should be directed to legal counsel.

Published Summer 2009

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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