How to recognize signs of ramped-up MSHA enforcement

One of the first things that comes to mind when evaluating the ramifications of having received a citation is how much the resulting civil penalty might be.

That is certainly a valid concern, but the penalty is only part of the story. The Mine Safety & Health Administration’s (MSHA) enforcement powers go far beyond imposing monetary penalties as punishment for a violation or inducement to come into compliance.

Congress included in the Federal Mine Safety & Health Act what could be described as a “ramped up” enforcement scheme for MSHA. For any given mine, MSHA’s enforcement arsenal grows as the agency cites more violations and alleges more serious types of violations. Disruptive and costly fallout can quickly come into play when this happens, so it is important that operators be alert to the signs that their mine is at risk and, where possible, take appropriate action.

Cases in point

Here are a couple of examples of what can happen and what the warning signs may be:

■ Withdrawal order for unwarrantable failure to comply. Whenever an inspector believes a supervisor or manager was involved in a violation and that the violation was significant and substantial (S&S), the inspector will issue a citation under Section 104(d) of the Mine Act for unwarrantable failure to comply – and MSHA may assess a higher-than-usual civil penalty.

The mine now is essentially on probation for the next 90 days. If MSHA finds another unwarrantable failure violation at that mine within those 90 days, the inspector can issue an unwarrantable failure withdrawal order.

A withdrawal order is a form of ramped-up enforcement requiring the operator not only to pay a penalty but to withdraw everyone from the affected area or equipment – except those few people necessary to abate the violation.

The withdrawal must remain in effect until the inspector determines that the violation was fully abated. Once MSHA issues that first withdrawal order, every subsequent unwarrantable failure will close the affected area or shut down the cited equipment. To stop the flow of withdrawal orders from being issued, the mine must undergo a full inspection with no unwarrantables found.

Whenever an inspector asks questions about who in supervision or management may have been aware of a safety condition, that is a red flag that the inspector is thinking he can write an unwarrantable failure citation. This is often a first warning sign that ramped-up enforcement may be coming.

Certainly, once the mine receives that first unwarrantable failure citation, you can expect MSHA will be especially focused on issuing additional unwarrantable failures. If any of these unwarrantables should not have been written, you may consider asking for a conference with MSHA as soon as possible. You can also try to provide the inspector with additional information that would indicate he should remove the unwarrantable failure allegation, even before he closes out the inspection.

■ Pattern of Violations (POV). This is arguably the most severe enforcement tool Congress gave MSHA. When the agency decides a mine has a pattern of violations, MSHA is empowered to issue a withdrawal order for every S&S violation. Such orders will continue to be issued until the mine can get through a complete inspection without any S&S violations.

This, essentially, is MSHA’s nuclear weapon. Being on POV will make it nearly impossible to run the operation.

In deciding whether to place a mine on POV, MSHA reviews the mine’s history of violations issued over the past 12 months. Not every citation counts in MSHA’s POV review. Those that matter carry findings of S&S, high negligence, unwarrantable failure, imminent danger, failure to abate a violation, or failure to properly train miners. MSHA also considers the mine’s injury record.

MSHA posted on its website a tool that can be used to see how close a mine is to meeting the POV criteria. Mine operators should periodically check this. You may also want to keep the POV criteria in mind as you consider whether to contest certain citations.

While MSHA has not placed a mine on POV in a while, there is no guarantee things will stay that way. The decisions made today in terms of which citations to challenge could be critical to what happens a year from now with MSHA.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.

---

Featured photo: P&Q Staff