Outlining MSHA enforcement in 2023

Bill Doran, shareholder of the Washington, D.C., office at Ogletree Deakins, is a regular contributor to Pit & Quarry whose practice is concentrated in safety and health law litigation. Doran offered insights on the Mine Safety & Health Administration (MSHA) Jan. 25 at the 2023 Pit & Quarry Roundtable & Conference, reflecting on MSHA’s recent enforcement actions and what the rest of the year might look like.

P&Q: At the beginning of December, MSHA came forward with a pattern of violations (POV) notice for a Morton Salt operation down in Louisiana. Prior to this, it had been seven or eight years since MSHA issued a POV notice. What does that POV notice to Morton Salt ultimately mean for the operators in aggregates?

BILL DORAN (OGLETREE DEAKINS): Pattern of violations is a provision in the Mine Act that enables MSHA to issue a pattern notice when they identify a pattern of S&S (significant and substantial) violations. Those are the ones that have a reasonable likelihood of producing a serious injury. Any S&S citation after that notice results in a withdrawal order.

Normally, MSHA can only withdraw miners from an operation or from a piece of equipment if there’s an imminent danger, or if there’s been a series of unwarrantable failure citations. The pattern provision has always been viewed as the atomic bomb of the Mine Act. The Mine Act came into play in 1977, and pattern was not used until the Obama administration. That tells you that it’s an enforcement weapon that the agency has stayed away from.

With Morton Salt, I think there may have been a focus on sending a message to the metal/nonmetal side of the mining industry. I don’t know the ins and outs of why the agency decided to go that direction, as opposed to allowing the company to put a plan in place to improve its history. But it seems like there is a lot more than meets the eye there.

Clearly, the message from MSHA and [assistant secretary] Chris Williamson is: ‘We’re back, and we’re going to try to get our enforcement profile back to where it was pre-2017.’ There were campaign promises about ratcheting up enforcement, and I think this was a shot over the bow to let everyone know there’s a new sheriff in town.

P&Q: MSHA is leaving it up to individual operators to keep tabs on their POV score. What sorts of issues is this creating, and how are operators adapting to stay on top of their POV score?

DORAN: It used to be that if you were getting close to a POV notice and the criteria were being met, MSHA’s district manager would send you a letter or call you and say: ‘You’re getting close. You need to put a corrective action plan in place, and if you meet those numbers at some point in the future, we’ll give you some time and we won’t issue a pattern notice.’

Some district managers still do that. There are currently a number of mine operators who have operations that are on corrective action plans, and are staving off pattern notices.

MSHA made it very clear when they put the pattern criteria scorecard on its website that, from now on, the ultimate responsibility to know your score is on the mine operator. The agency’s position is that mine operators need to proactively put that corrective action plan in place when the numbers get close. If you don’t have that plan in place when you meet the criteria, there is a good chance that MSHA will issue a pattern notice.

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