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Addressing ‘flaws’ in the Mine Act

By |  February 2, 2022
Tim Means

Means

Tim Means recognizes the good that the Mine Safety & Health Administration (MSHA) provides to the mining industry in helping to protect the safety and health of miners.

He realized early into his career as a mine safety and health lawyer, however, that MSHA sometimes goes too far or off course. And it was times like those that spurred a passion in him to ensure justice was done.

“When they’re (MSHA) doing their job, I support them 100 percent,” says Means, a retired partner at Crowell & Moring who graduated from law school the same year (1978) the Mine Act took effect. “The problem is the agency sometimes gets carried away. They don’t see the other side of the situation, and either interpret the law unfairly or enforce it unfairly.”

Despite seeing miners’ safety and health meaningfully improved on many occasions, one burden Means carried with him into retirement is knowing there are legal flaws in the Mine Act. These “flaws in the law” endanger miners rather than protect them, he argues. But effectively exposing the flaws – and, ultimately, getting Congress to do something about them – is easier said than done.

“I thought if I wrote legal memorandums, briefs or letters that people would dismiss my arguments as just being a lawyer expressing my clients’ interests,” Means says. “But I thought if instead I wrote a suspenseful novel that engaged readers in a story that illustrated how these flaws operate to jeopardize miners’ safety and health, that would be a much more effective way of getting the message across that these flaws really are endangering miners.”

“Copper Canyon,” a fictional novel published in 2021 that’s available through Amazon, is Means’ way of illustrating why the Mine Act should be amended.

“Ideally, everyone would rise up and petition their congressman, send them copies of my book and persuade Congress to build momentum to address some of these flaws,” he says.

What’s in the book?

“Copper Canyon,” a novel by Tim Means, is available on Amazon. Photo: Tim Means

“Copper Canyon,” a novel by Tim Means, is available on Amazon. Photo: Tim Means

As Means describes, “Copper Canyon” is the story of MSHA enforcement gone astray. Although most of the story takes place at an underground coal mine, Means says the novel’s lessons apply broadly to all operations subject to the Mine Act. 

A couple of the book’s chapters take place at the National Academy of Mine Health & Safety, where readers sit in on the training of new inspectors who not only learn about their duties and powers, but also the fundamental principles of mine safety and health regulation.

While Means provides readers with the fundamentals, he introduces an inspector who started his career working for a mine operator yet was fired for sleeping on the job when he was supposed to be conducting a Mine Act-required workplace hazard examination. Years later, MSHA assigns him to inspect the mine operated by his former employer.

As “Copper Canyon” unfolds, a miner who is a perennial disciplinary problem exploits the Mine Act’s protections for miners exercising their safety rights under the law. Despite failing either to correct or report to the mine operator the existence of a safety hazard, the miner makes a safety complaint to MSHA that results in an unwarrantable failure citation. When the miner is terminated for failing to report or correct the violation as the final step in the operator’s progressive discipline program, MSHA seeks to have a Federal Mine Safety & Health Review Commission administrative law judge reinstate him.

Means takes readers along for the ride with the unfortunate mine operator, exploring not only the problematic nature of Section 105(c)’s substantive and procedural provisions intended to protect whistleblowing miners from discrimination, but also the pitfalls of supervisor liability, the difficulties of the advance notice provisions of the Mine Act as MSHA currently interprets, and more.

Systematic flaw

Although most of “Copper Canyon” takes place at an underground coal mine, author Tim Means says the novel’s lessons apply broadly to all operations subject to the Mine Act. Photo: ollo/ iStock / Getty Images Plus/Getty Images

Although most of “Copper Canyon” takes place at an underground coal mine, author Tim Means says the novel’s lessons apply broadly to all operations subject to the Mine Act. Photo: ollo/ iStock / Getty Images Plus/Getty Images

Without spoiling the ending, Means says “Copper Canyon” readers witness the unfortunate reality that MSHA, because it effectively investigates its own potential failures when it conducts an accident investigation, sometimes pins an accident on the mine operator when the fault is actually as much or more with MSHA.

“Consider that MSHA is the agency under the Mine Act that investigates mine accidents,” Means says. “The problem with that is MSHA has a built-in conflict of interest with that role. MSHA’s job is to prevent mine accidents by regulating and coming up with safety standards that are effective and enforcing those standards so there aren’t accidents. If an accident nonetheless occurs, the question naturally arises whether the agency somehow failed to do its job: Were its regulations inadequate, or were they not being adequately enforced?

Kevin Yanik

About the Author:

Kevin Yanik is the editor-in-chief of Pit & Quarry magazine. Yanik can be reached at 216-706-3724 or kyanik@northcoastmedia.net.

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