March 1, 2008
Limiting Operator Opportunity
It’s no secret that relations with the Mine Safety and Health Administration (MSHA) have changed since a series of coal mining fatalities brought MSHA under the Congressional microscope. And it is not a change for the better.
While personal contacts with regulators may remain intact, the overriding relationship can be described, at best, as strained. Various incidents have impacted this climate shift — the passage of the Mine Improvement and New Emergency Response (MINER) Act, the implementation of flagrant penalties, the focus on establishing a pattern of violations, and the ill-conceived Supplemental Mine Improvement and New Emergency Response (S-MINER) legislation.
The most recent incident comes from a procedural instruction letter dated Feb. 4. In it, Kevin Stricklin and Felix Quintana — the administrators for coal mine safety and health and metal and non-metal safety and health, respectively — address the issue of safety and health conferences. They write, “Until further notice, all safety and health conferences held pursuant to 30 C.F.R. Part 100.6 may be limited to unwarrantable failure and high negligence violations. All other violations may be conferenced at the discretion of the district manager by the conference litigation representative (CLR), or other MSHA personnel assigned to conduct Part 100 safety and health conferences… Conference requests that have already been granted and which do not involve unwarrantable failure and high negligence in the violations should be cancelled. The citations shall be forwarded for assessment of penalty.”
With the sweep of a pen, operators have lost the opportunity — except for the most serious of citations — to offer factual rebuttals to penalties they feel are assessed in error. Many operators currently use these conferences to avoid mounting legal challenges, and the likely result will be more time and money spent in courts.
While it is understandable that MSHA is striving to meet its statutory obligation to inspect all mines, it is incomprehensible that operators will be denied the opportunity to challenge the findings.
The FY 2009 proposed budget for MSHA is $332 million, a 6-percent increase compared to FY 2008. Richard Stickler, acting assistant secretary of labor for mine safety and health, said that that money would include funding for 55 additional metal and non-metal enforcement personnel. In a press release concerning the proposed budget, Stickler noted that the request affords the agency the necessary resources to continue the aggressive enforcement that led to a doubling of fines from $35 million in 2006 to $75 million in 2007.
The agency should be adequately staffed, and better yet, adequately trained, to fulfill its statutory obligation. At the same time, it should honor its tradition of giving operators a chance to rebut citations. As it touts its ability to increase the value of fines and decides not to provide such an opportunity, MSHA takes another step in the wrong direction.