On Feb. 2, the Mine Safety and Health Administration (MSHA) published a proposed rule in the Federal Register on Pattern of Violations (30 CFR Part 104), but the proposal may be troubling to aggregates operators.

The rule would specify the criteria such as compliance, accident, injury, and illness records to be used for identifying facilities eligible for pattern status. It also would drop the previously promised mandate that MSHA would forewarn operators of the potential that one of its facilities could be placed onto pattern status.  

Additionally, the rule would call for MSHA to solely rely on issued citations — as opposed to those that will have been fully adjudicated — when determining whether a facility should be placed on pattern status. 

Concern has been raised in the aggregates industry about due process rights for facility operators.

Interestingly, MSHA would post the specific POV criteria, along with compliance information, in a database that would be searchable by mine, at

www.MSHA.gov. The site would allow operators to monitor their own records against the POV criteria and take steps to eliminate persistent, systemic safety and health hazards, and bring their mines into compliance with regulations.

However, it would eliminate the potential POV procedure, which involves written notification that a potential POV exists at a particular mining operation.

This means that mine operators would no longer receive advance warning. Screening under the proposed rule would be for mine operators that meet criteria for a pattern of violations, and the proposal would increase the frequency of MSHA’s review of a mine for a POV to twice a year.

However, according to MSHA, the proposed rule would: 

1) Simplify the existing POV criteria and MSHA’s procedures for issuing a POV notice;

2) Provide for a more open and transparent process;

3) Encourage chronic violators to comply with MSHA’s safety and health standards;

4) Result in improved health and safety conditions for miners; and

5) More effectively achieve the statutory intent.

(The proposed rule is available for viewing at the Federal Register Public Inspection Desk at http://www.federalregister.gov/inspection.aspx. The comment period for the proposed rule will close on April 4. To submit comments electronically, send an e-mail to zzMSHA-Comments@dol.gov.) For additional information on the proposed POV rule, see Rock Law on page 56.

A new mine safety bill is also in the works. Senators Jay Rockefeller (D-W.Va.), Joe Manchin (D-W.Va.), Patty Murray (D-Wash.), and Tom Harkin (D-Iowa) have reintroduced a mine safety bill.

The Robert C. Byrd Mine and Workplace Safety and Health Act of 2011 (S. 153) is almost the exact same bill that was introduced in the Senate last year — the only changes were minor stylistic edits.

The legislation would provide for major changes to both the Mine Safety and Health Act of 1977 and the Occupational Safety and Health Act of 1970. The legislation is considered “a placeholder until the investigation into the Upper Big Branch disaster is completed,” notes the Industrial Minerals Association — North America (IMA-NA)

The goal was to complete the investigation by April, but there may be a delay in the public release of those materials as a criminal investigation proceeds. “It is important to note that it is very unlikely that this legislation would be able to pass either the Senate or the House in its current form,” according to IMA-NA.