Significant Provisions Of S MINERS ACT Significant Provisions Of S MINERS ACT Pertaining to Enforcement of all M/NM Mines. New ombudsman within the Office of Inspector General (oversees MSHA conduct) to: Ensure MSHA keeps confidential the identity of miners, families or representatives who provide information. Maintain a toll-free telephone number for confidential complaints, concerns and information. (This will be separate from MSHA's own call-in line mandated by the act.) Refer matters to the Secretary of Labor and the Inspector General "for investigation or audit, or both...." Monitor prompt action by the Department of Labor on miners' complaints of discrimination related to safety activity. Any complaints made to MSHA must be forwarded to the ombudsman for "appropriate action" (without delaying action by MSHA). Refer to the Inspector General any case not handled properly by MSHA. More MSHA inspectors: Ceilings "on the number of personnel that may be employed by [MSHA] with respect to mine inspectors are abolished" (for five years). MSHA "is authorized to hire retired inspectors on a contractual basis" (with no loss of retirement benefits).

Pattern of violations enforcement mandates: MSHA is to give notice of a potential pattern within 10 days, after which the operator can respond. A decision on pattern enforcement must be made within 45 days. "In determining whether a pattern... exists, [MSHA] shall give due consideration to all relevant information, such as the gravity of the violations, operator negligence, history of violations, the number of inspection shifts [MSHA has] spent at the operation, and the frequency of violations per number of inspection days...." Penalties for pattern include authority not only to withdraw miners for each "significant and substantial" violation, but also MSHA "shall withdraw all miners from the entire mine when any pattern of violations has been determined to exist..." (until all violations are corrected and the operator agrees to abide by a written compliance plan approved by MSHA). For a pattern, MSHA "shall assess a penalty, in addition to any other penalty... of not less than $50,000 nor more than $250,000." The penalty assessed by MSHA "may not be reduced" by the Federal Mine Safety and Health Commission. (The commission is the agency that hears operator appeals from MSHA enforcement.) "All operators... including any corporate owners, shall be jointly and severally liable for such penalty.“ Reporting abatement of violations: The operator "shall notify the secretary that the operator has abated the violation involved." "If such operator fails to notify the secretary within the abatement time as provided for in the citation, the secretary shall issue an order [to withdraw the miners]."

Regardless of notice, "no violation shall be determined to be abated" until an inspector returns to view the site. Immediate payment of penalties: "The operator shall, not later than 30 days from the receipt of the notification of a citation... notify [MSHA] that the operator intends to contest the citation or proposed... penalty, and the operator shall place in escrow with [MSHA] the amount of the proposed assessment." If the money is not put in escrow, the penalty will become final "and not subject to review by any court or agency." If an operator fails to pay a final order, [MSHA] "shall have the authority to issue an order requiring the mine operator to cease production...." Assessment procedures: Instead of evaluating the size of a mining operation, MSHA would have to evaluate "the combined size of the business of the operator and any controlling entity." The S-MINER Act eliminates the requirement that "ability to continue in business" be considered in assessing penalties. It is mandated that the Commission adhere to MSHA's point system in reviewing penalties, thus eliminating the discretion of judges to greatly reduce penalties without regard to how they were calculated by MSHA. Any settlements of penalties must also be based on the point system. Miner Complaints of Discrimination related to safety activity, if upheld, will result in civil penalties of no less than $10,000 and no more than $100,000.

Increased MSHA powers: MSHA is given additional subpoena power. MSHA is given additional power to convene public hearings for investigations, especially in cases of multiple injuries or fatalities. Department of Labor attorneys may contact any non- managerial company employee in investigating cases and seeking witnesses. The bill states: "No person shall limit or otherwise prevent [MSHA] from entry... or interfere with... inspection activities, investigative activities, or rescue or recovery activities." Other significant changes: MSHA investigators for any "accident or incident" must "determine whether civil or criminal requirements were violated" by the operator (and agents of the operator) and also "whether conduct or lack thereof by agency personnel contributed to the accident or incident." "No attorney representing a mine operator... may concurrently represent individual miners in the same matter." More events will have to be reported by the operator by telephone. (In some cases, the operator will have one hour rather than 15 minutes to report.)