MSHA issued a news release yesterday announcing that eight mine operators have been put on notice for potential enforcement under the “pattern of violation” provisions of the Mine Act. MSHA’s release does not list the names of the mining operations, but the Charleston Gazette’s Ken Ward is reporting that two of the mines are metal/non-metal operations and six are coal mines, including three in West Virginia.
In his written statement, MSHA’ Assistant Secretary Richard Stickler said:
“The purpose of these letters is to put mine operators on notice about the repercussions they face if they repeatedly disregard mine safety and health regulations. The ultimate goal is to restore effective safe and healthy conditions at these mines, and MSHA will not hesitate to use all the tools available to ensure compliance with the law.”
This is an enforcement stick “maybe” because the regulations give the mine operators 90-days to reduce the number of “significant and substantial violations”(S&S) identified by inspectors. After that, MSHA officials will decide whether to issue a formal “pattern of violation” notice. The pattern of violation regulations were issued in 1990 after a 10-year rulemaking and legal battle with mining trade associations and operators. Critics of the existing regulations say Congress gave MSHA the authority to essentially shut down a mine after determing it had a pattern of S&S violations, but the 1990 rules allow mine operators endless appeals to avoid receiving the “patter of violation” classification. To my knowledge, no mine operator has received the pattern of violation designation.
Stickler’s announcement says:
“If the operator significantly reduces its violation frequency rate, it can avoid being issued a Notice of a Pattern of Violations. If the improvement falls short of the criteria, MSHA will issue the notice. For each S&S violation found, MSHA will issue an order withdrawing miners from the affected area until the cited condition has been corrected. An operator can be removed from a pattern of violations when 1) an inspection of the entire mine is completed and no S&S violations are found or 2) no withdrawal order is issued by MSHA in accordance with Section 104 (e)(1) of the Mine Act within 90 days of the issuance of the pattern notice.”
In a post last week (WANTED: A Stick for MSHA’s Stickler), I criticized the MSHA Asst. Secretary for not using the Mine Act’s enforcement provisions to punish mine operators who fail to control coal mine dust and put their workers at serious risk of developing coal workers’ pneumoconiosis (“black lung” disease.) In this latest announcement, the MSHA chief is waving a stick, but hasn’t actually used it.