New screening criteria will be used for MSHA's pattern of violations enforcement program, which targets mines with a history of safety violations. The agency outlined the changes Sept. 28 after being criticized recently by Congress and the DOL inspector general for gaps in its enforcement of Section 104(e) of the Mine Safety and Health Act of 1977, which allows closure orders to be issued for mine areas where there is a pattern of significant and substantial violations.
"Since the passage of the Mine Act more than 30 years ago, not one mining operation has ever been placed on a pattern of violations," said Joseph Main, assistant secretary of labor for mine safety and health. "We have known for some time that the current system is broken and needs to be fixed. This new screening process improves upon the old one, which cast too broad a net and did not distinguish mines with the highest levels of elevated enforcement. This new system will let MSHA focus its attention on those mines that are putting miners at greatest risk."
However, he also described the new format as "a stop-gap measure until reform can occur. We are aggressively pursuing both regulatory and legislative reforms," Main added, "but in the meantime, this new policy improves our ability to identify problem mines. Our goal with each of these reform efforts is to identify mines with a pattern of dangerous conditions and encourage them to improve their safety records. If a mine fails to do so, it will be placed into POV status."
The act says POV is to be used "at mines with a record of repeated [significant and substantial] violations and where the other enforcement provisions of the statute have not been effective in bringing the mine into compliance with federal health and safety standards." The preamble states, "MSHA expects to reserve the use of the 104(e) sanctions for mines where the operator has not responded to an escalating series of enforcement actions by the Agency."
"MSHA's changes to the screening process are designed to meet these statutory and regulatory objectives," said Main. "The new screening criteria will draw more attention to the so-called 'bad actors' than did the old criteria. They will focus on mines that exhibit chronic failures to maintain safe working conditions, have repeated significant and substantial violations, and have not responded to other enforcement tools."
The most recent available 12 months of OSH data will be used to screen, with criteria addressing two categories of violators. In the first, a mine must exhibit at least 50 significant and substantial (S&S) violations; have S&S violations either issued at an elevated rate of eight per 100 inspection hours or at elevated levels of negligence (25 percent or more); have a high rate of elevated enforcement actions (0.5 per 100 inspection hours); and have an elevated record of severe injuries (above the industry rate). The second category targets mines that don't meet those criteria but still have at least 100 S&S citations/orders and at least 40 elevated citations/orders. Both categories require at least five S&S violations of the same standard or at least two S&S violations caused by an unwarrantable failure to comply with the law.