Recognizing the Signs of Ramped-Up MSHA Enforcement

One of the first things that comes to mind when a mine operator evaluates 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 and Health Administration’s (MSHA) enforcement powers go far beyond imposing monetary penalties as punishment for a violation or as an inducement to come into compliance.

Congress included in the Federal Mine Safety and Health Act of 1977 (Mine 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 subsequent violations and alleges more serious types of violations. A disruptive and costly fallout can quickly come into play when this happens, so mine operators may want to remain alert to the signs that their mine is at risk of heightened enforcement and, where possible, take appropriate action.

Below are a couple of examples of what can happen and possible warning signs that a mine may be at risk.

Withdrawal Order for Unwarrantable Failure to Comply

When an MSHA inspector believes that a supervisor or manager was involved in a significant and substantial (S&S) violation, the inspector can issue a citation under section 104(d) of the Mine Act for an unwarrantable failure to comply with a mandatory health or safety standard—and MSHA may then assess a higher-than-usual civil penalty.

Due to the unwarrantable failure citation, the mine is essentially on probation for the next 90 days. If MSHA finds another unwarrantable failure violation at the mine during the 90-day period, the inspector can issue an unwarrantable failure withdrawal order.

A withdrawal order is a form of “ramped-up” enforcement requiring the mine operator not only to pay a penalty, but also to withdraw everyone from the affected area or cited equipment—except those people who are necessary to abate the violation.

The withdrawal order remains in effect until the inspector determines that the violation has been fully abated. Once MSHA has issued the first withdrawal order, every subsequent unwarrantable failure finding will close the affected area or shut down the cited equipment. Under section 104(d)(2) of the Mine Act, a mine operator will remain subject to a withdrawal order until the mine undergoes a full MSHA inspection without issuance of another unwarrantable failure order.

An inspector’s questioning of who in a supervisory or management role might have been aware of a safety condition may be a red flag that the inspector is considering an unwarrantable failure citation. This is often the first warning sign of impending ramped-up enforcement.

Certainly, MSHA’s issuance of a first unwarrantable failure citation is another indication that the agency will focus on issuing additional unwarrantable failures. If the mine operator deems that an unwarrantable failure citation should not have been written, the operator may want to consider asking for a conference with MSHA as soon as possible. In addition, the operator may also provide the inspector with additional information that would support removing the unwarrantable failure designation, even prior to the end of the inspection.

Pattern of Violations

Pattern of violations (POV) authority is arguably the most stringent enforcement tool Congress granted MSHA in the Mine Act. When the agency determines that a mine has a pattern of violations, MSHA is empowered to issue a withdrawal order for any subsequent S&S violation. MSHA will continue to issue such orders until the mine can get through a full MSHA inspection without any S&S violations. Being on POV status makes it extremely difficult for an operator to continue the operation of a mine.

In determining whether to place a mine on POV status, MSHA reviews the mine’s history of violations issued during the past 12 months. Under the established criteria, not every citation will factor into MSHA’s POV review. The citations that may demonstrate a POV are those involving findings of S&S violations, high negligence, unwarrantable failures, imminent danger, failures to abate violations, or failures to properly train miners. MSHA also considers the mine’s injury record.

MSHA has an online POV calculator that mine operators can use to determine what action to take “to avoid triggering a POV notice.” MSHA reminds mine operators that it is their responsibility to “track their violation and injury histories.” Mine operators may also want to remain aware of the POV criteria when considering whether to contest certain citations.

While MSHA has not placed a mine on POV status in a while, there is no guarantee that things will stay that way. A mine operator’s decisions as to which citations to challenge may be critical to what happens in its future with regard to MSHA’s enforcement actions.

A version of this article was previously published in Pit & Quarry magazine.