Pit & Quarry, February 2011

by Michael T heenan MSHA issues perhaps 20 to 30 percent of its citations as S S Too many of these at any particular mine along with certain other indicators could result in MSHA declaring the mine to have a pattern of violations will then review the operator under its initial screen criteria Under the initial screen criteria an operator can qualify for a full pattern review in one of two ways Under the first category of review an operator who meets the following criteria will become subject to a full review 1 at least 50 S S citations orders issued during the review period 2 a rate of eight or more S S citations orders issued per 100 inspection hours during the review period or the degree of negligence for at least 25 percent of the S S citations orders issued is high or reckless disregard 3 a rate of one or more elevated citations and orders issued per 200 inspection hours during the review period and 4 an injury severity measure for the mine that is greater than the overall industry SM for all mines in the mine type and classification for the review period Under the second category of review an operator who has either 100 S S citations orders issued during the review period and at least 40 elevated citations orders will qualify An operator only needs to meet one of the two categories of review to become subject to a full pattern review PQ Legal editor Michael T Heenan is an attorney at Ogletree Deakins Nash Smoak Stewart one of the nations largest labor and safety law firms He can be reached at michael heenan@ odnss com Pattern of violations N uclear weapons are not supposed to be used They are strategic deterrents The mining industry has long viewed pattern of violations enforcement as a nuclear weapon For a long time MSHA obviously viewed things the same way The situation has changed MSHA is now determined to impose pattern sanctions Mining companies need to be aware The law The Federal Mine Safety and Health Act states If an operator has a pattern of violations which are of such a nature as could have significantly and substantially contributed to the cause and effect of mine safety or health hazards the operator shall be given written notice that such pattern exists This legalese has been reduced to the common term significant and substantial S S violation If an inspector finds another S S violation within 90 days an inspector shall issue an order requiring the operator to cause all persons in the area affected to be withdrawn until the inspector finds the condition has been abated Once such an order has been issued every S S violation will result in a withdrawal order Such area closure orders will be issued until such time as the operator goes through a complete inspection of the mine in which no S S violations are found What this really means MSHA issues perhaps 20 to 30 percent of its citations as S S Too many of these at any particular mine along with certain other indicators could result in MSHA declaring the mine to have a pattern of violations Once on pattern every citation that is marked S S will stop operations at the site until the violation is corrected If a critical piece of machinery is involved the whole operation could be idled repeatedly Why is this a nuclear weapon Because if a mine has so many S S violations that it is put on pattern the chances of the mine getting through a subsequent complete inspection with no S S orders is slim to none That If a mINe HaS SO maNy S S vIOLatIONS tHat It IS put ON patterN tHe cHaNceS Of tHe mINe gettINg tHrOugH a SubSequeNt cOmpLete INSpectION wItH NO S S OrDerS IS SLIm tO NONe means that for the rest of the mines existence closure orders will be issued for all S S violations Moreover a mine that has been put on pattern will inevitably draw closer scrutiny with the result that inspectors will be focused on S S determinations and therefore will probably be more likely to find S S conditions Pattern review procedure To become subject to a full pattern of violations review an operator must meet two sets of assessment criteria The first set of criteria which MSHA bases on the requirements of its pattern regulations requires that an operator have either five S S final orders of the same standard or two final unwarrantable failure citations orders within the review period the 12 months preceding If an operator meets the preliminary criteria MSHA 66 PIT QUARRY February 2011 www pitandquarry com