Pit & Quarry, March 2013

MSHAs nuclear option T he good news is MSHA acknowledges that the majority of mine operators are conscientious about providing a safe and healthful work environment for their miners The bad news is that if MSHA decides any mine operator is not conscientious but rather has a discernible pattern of significant and substantial S S violations that mine will immediately be given a pattern of violations notice This is MSHAs nuclear option you might say because it will be devastating and potentially permanent Once a mine is given a pattern notice every S S citation will result in an order to withdraw miners This will continue until MSHA completes an inspection of the entire mine in which no S S violations are found Some have estimated a cost of 14000 to 44000 per hour at large mines Certainly having to stop work at each location or item of equipment until a violation is fixed will be costly for a mine of any size Even for conscientious mine operators it is rare for inspections to be completed without a single S S violation being issued S S violations are commonplace MSHA liberally characterizes a notable percentage of violations to be S S Historically there have been times when MSHA characterized as many as 80 percent of violations to be S S and this still happens at mines Currently more that 30 percent of all violations are designated S S Anytime an inspector determines there is a reasonable likelihood that a reasonably serious injury could occur the violation is S S That is the legal test that courts apply in reviewing an BY MICHAEL T HEENAN inspectors determination This is a highly subjective determination as inspectors can consider almost anything other than technical violations to be S S Judges may agree or disagree but it takes a trial to find out which takes time and this brings up more problems Legal challenges S S violations and civil penalties have been a real concern for the 14000 mines in the United States including the 12000 that have fewer than 20 employees Under previous regulations ANYTIME AN INSPECTOR DETERMINES THERE IS A REASONABLE LIKELIHOOD THAT A REASONABLY SERIOUS INJURY COULD OCCUR THE VIOLATION IS S S MSHA only considered violations that were final for purposes of pattern That made sense because issuing closure orders based on citations that may later be reduced in contest proceedings is incongruous at best and unconstitutional at worst It is partly because mine operators have contested many violations 59000 presently that MSHA has decided to not wait for final determinations Whatever the inspector says a citation is it is And if there are enough adverse inspector findings pattern enforcement will ensue While there are ways to seek expedited pre penalty reviews of a citation the process would be unavailing with Mine operators used to be notified if they were approaching a pattern of violations notice Now MSHA says everything operators need to know about pattern can be found online This is a problem respect to multiple S S violations particularly if no pattern notice has yet been issued MSHA argues that counting S S citations that are not final is not unconstitutional and further that Congress ordained that MSHA should decide how to assess pattern MSHA relies on a provision in the law stating The Secretary MSHA shall make such rules as he deems necessary to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists MSHA says Congress intended the reliance be on inspection history rather than history of violations The distinction is that MSHA does not count non final violations for the history part of civil penalty determinations So there is an inconsistency in approach MSHA also notes that after issuing an unwarrantable failure MSHA does not wait for it to become final before issuing closure orders founded on the citation Another problem is that in the past mine operators would be notified if they are approaching pattern They would be given an opportunity to discuss with MSHA and perhaps begin a remediation program to avoid a pattern MSHA is no longer providing Continued on page 95 90 PIT QUARRY March 2013 www pitandquarry com