The US Department of Labour (DoL) and the US Department of Justice (DoJ) have entered into a memorandum of understanding (MoU) to coordinate on matters pertaining to worker safety in mining operations that could lead to criminal prosecutions by the DoJ.
The MoU, signed on December 17, 2015, followed the preliminary data released by the DoL’s Mine Safety and Health Administration (MSHA) in late 2015.
The data indicates a significant decline in fatalities in the US, owing to mining-related accidents to 28 in 2015 from 45 in 2014, notes US-based law firm Dinsmore associate Kelby Gray.
The memorandum, says Gray, a member of the Labour and Employment Department at Dinsmore’s Charleston, West Virgina office, further addresses criminal prosecutions under the Federal Mine Safety and Health Act of 1977. This involves the provision of criminal sanctions for knowing and wilful violation of mandatory safety and health standards, giving notice of MSHA inspection activity and the falsification of documents filed or required to be maintained under the Mine Act.
In accordance with the MoU, the DoL and the DoJ will cooperate in developing and carrying out referrals for alleged violations, and related matters regarding compliance and law enforcement activity, Gray explains.
The associate solicitor for the MSHA, in consultation with the organisation’s administrator for either coal mine safety and health or metal/nonmetal mine safety will, with the DoJ, periodically discuss those employer and worker-safety matters that may be appropriate for enhanced investigation or criminal referral.
Gray lists several steps that mine companies in the US can take to protect their employees and operations from such referrals and investigations by the DoJ.
For mine operators to comply with the MSHA’s laws and regulations, he notes that they must firstly encourage familiarity with the MSHA among their employees and agents.
The Mine Act and MSHA regulations are complex and, thus, it should not be assumed that employees will become experts on the rules and regulations. Therefore, mine operators and their agents can help “stem the tide” of special investigations by studying the top-20 citations – the MSHA’s Rules to Live By, Gray says.
He also cites the need to study their operation’s regulatory history and selected “hot- button issues” under the Mine Act, such as the prohibition of advance notice of MSHA inspection activities.
Secondly, the MSHA has recently placed greater emphasis on workplace examinations, specifically in the metal/nonmetal industry. Alleged workplace examination violations could be subject to possible criminal referral, especially if the violation is issued under Section 104(d)of the Mine Act.
As such, all mine operators, regardless of whether they are engaged in the coal or metal and nonmetal industries must ensure that all designated examiners are properly trained on the applicable examination requirements. These examiners must be able to recognise conditions that adversely affect safety and health on site.
Thirdly, mine operators should develop a well crafted safety and disciplinary policy that insists that employees practice safe work habits. Gray states that, while many mines in the US already have such policies in place, enforcing them is critical as enforcement is often irre- gular and inconsistent.
“Creating and consistently adhering to such policies not only reinforces the company’s commitment to safety, but also expressly describes to all employees their obligations to adhere to all applicable laws and regulations,” he avers.
Gray highlights that mine operators should also conduct regular safety meetings with their employees to discuss conditions found during examinations. As such, the company will reinforce its commitment to safety and examiners and members of mine management may learn about issues during those meetings.
Finally, given the MoU and the rise in Section 110 investigations under the Mine Act, mine operators should provide their employees with training on potential civil and criminal liability.
Employees should be advised on the potential consequences of not working safely or complying with the MSHA’s regulations.