MSHA enforcement in 2009
February 19, 2009 By: Michael T. Heenan Pit & QuarryIn 2009, it can be reasonably expected that the Mine Safety and Health Administration (MSHA) will continue to escalate enforcement activities. One only need look at enforcement increases over the last few years and then imagine the likely approach of the new administration.
Following is the citation and civil penalty trend (in round numbers):
| Year | Citations issued | Penalties assessed |
| 2005 | 128,000 | $25 million |
| 2007 | 145,000 | $75 million |
| 2008 | 199,000 | $194 million |
While unwarrantable failure citations and orders (which always carry the threat of special investigation) have increased to a degree over this same period, MSHA’s greater focus for elevated enforcement now seems to be on pattern of violations. The grave threat with pattern-enforcement procedures is that once a company is held by MSHA to have a pattern of violations, every significant and substantial (S&S) citation will be issued as a closure order.
More than a dozen companies were issued pattern notices last year. While most companies were able to successfully defend against enforcement when their cases were heard at MSHA headquarters, other companies were not so fortunate. More than one company was found by MSHA to have a pattern subject to closure-order sanctions. Once a pattern is held to exist at a mine, closure orders will continue to be issued until MSHA finds no S&S violations. Since S&S findings are issued frequently by inspectors, avoiding them could be an almost impossible challenge for an operator deemed by MSHA to have an S&S pattern problem.
Procedures for judicial review are available to operators who are put on pattern enforcement. In one recent case, MSHA’s pattern notice was rescinded by an administrative law judge, who reduced the severity of findings with regard to some of the violations MSHA relied on to designate a pattern.
Meanwhile …
As a direct consequence of the increase in MSHA’s enforcement actions, many companies have responded by taking issue with virtually everything that MSHA is citing. Formerly, companies were able to resolve many issues at informal conferences with MSHA district officials. However, because so many conferences were being requested, MSHA has largely suspended conferences in many districts.
Since every finding can affect the points MSHA assigns to calculate civil penalties, companies have found it necessary to seek formal review before the independent Federal Mine Safety and Health Review Commission to obtain revision of inappropriate citation findings. A downward adjustment in a single finding regarding severity of the violation or negligence in any given citation can change the point calculation by 10 or 15 points. This, in turn, can change a penalty amount by thousands of dollars (depending on total points).
State of cases
The drastic increase in cases filed by mine operators with the commission has produced a rapidly growing backlog. The backlog of 5,500 cases in 2007 doubled to 11,000 cases through the end of 2008. Each case usually involves multiple violations that, if tried in court, must be heard individually.
This volume is delaying case assignment, processing and review by many months, and, in some cases, years. This has been a major problem for commission judges. It would be a problem under any circumstances, but it is worsened by the fact that some of the most seasoned judges have retired recently. MSHA also considers the backlog to be a huge problem for enforcement. It can also be a problem for a mine operator seeking prompt review on an important issue -- but in general it is less of a problem for operators because no penalty is due until a final decision is rendered.
MSHA’s response
To try to move cases more quickly and bring enforcement to bear on operators sooner, MSHA is adopting new procedures. These new procedures are intended to clear cases, finalize penalties and force payment on a much faster schedule. The new procedures, if followed by operators as MSHA hopes, also will allow MSHA to more quickly calculate a full history of violations for each company.
History, which can only be calculated based on citations that have become final, is another penalty calculation criterion that can substantially inflate penalties. History can add as much as 25 points, which can convert a $900 penalty to a $7,000 one. A worse example would be a penalty originally assessed at $7,000 becoming $50,000 with the addition of 25 history points. (An operator receives 25 points when it has an average of 2.1 violations per inspection day.)
In any event, MSHA’s new plan for processing cases appears to be follows:
1. Propose a penalty within 30 days.
2. Advise operators to file a formal contest with the commission if review is desired.
3. Conduct a formal settlement conference utilizing an MSHA conference representative within 30 days, before formal case procedures are required.
4. Have Labor Department attorneys file a formal petition for penalty assessment with the commission if the case is not settled in the 30-day conference.
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