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MSHA ENFORCEMENT

Background:

    The industry’s commitment to workforce safety and health is primary and longstanding. For instance, in 2008, the industry attained a total injury incidence rate of just 2.62 injuries per 200,000 hours worked. Not only was this a record low, but it was also the eighth consecutive year in which the industry achieved improvement over the year-earlier level.

    The aggregates industry recognizes the important role played by MSHA’s responsibility to properly enforce pertinent regulations. However, inappropriate enforcement can risk giving the impression that compliance is an over-utilized tool in achieving our goal of zero injuries. While some Mine Safety & Health Administration (MSHA) regulations are prescriptive, the majority are performance-oriented, giving mine operators necessary compliance discretion. The situation also leaves room for varying interpretations of some regulations by operators and inspectors alike. The result can be a situation in which an operator is judged to be in compliance and inspectors make no comment on a situation for years, and then – without warning - suddenly begin issuing citations due to a change in an inspector’s interpretation, even though the regulation has not changed. Further, assignment of high Negligence or Gravity used to justify more citations and higher penalties creates inefficiencies, unnecessary operating costs and more appeals, which divert resources away from the operator and MSHA. The focus must remain on safety and effective management of risk for the sake of the employees.

Key Points - Enforcement:

  • In order to build upon the industry’s success in reducing injuries and fatalities, MSHA should constructively train and educate both inspectors and operators to improve worker safety and health, rather than adopt an adversarial approach to enforcement.

  • The aggregates industry’s safety record is very strong. Given this positive trend why is MSHA increasing citations for what appear to be de minimus-types of issues? The quality of citations to prevent frivolous or unnecessarily expensive penalties, as well as applying a qualitative level of risk, are important oversight responsibilities for the government.

  • Historical safety performance by a facility should be a more significant factor in enforcement determinations, along with severity of risk and other factors.

  • Before citations for situations of minor risk are initiated - when heretofore such situations have not warranted citations - MSHA should be authorized to warn operators of a change in interpretation as an example of compliance assistance.

  • Heavy-handed enforcement at aggregates facilities should prompt an investigation by the appropriate MSHA District Manager as to why a significant increase in citations occurred.

  • MSHA should conduct inspections with appropriate respect for industry stakeholders, giving safety-committed miners the benefit of the doubt.

  • MSHA should focus efforts on clear safety violations, versus arbitrary assumptions that a standard is un-met.

  • MSHA should enforce standards for safety, not issue citations based on what frequently appear to be arbitrary targets for issuance of citations.

  • MSHA should effectively communicate to inspectors the decisions made by conference litigation representatives, administrative law judges, or the Federal Mine Safety Review Commission of citation vacatures so that subsequent enforcement actions on these same issues are not erroneously issued; failure here results in a squandering of precious industry resources on repetitive appeals.

  • MSHA should amend the conferencing process so that disputes of citations are addressed in a timely manner.

  • MSHA should properly account for assessment payments in a timely manner.

  • Given that the aggregates sector is by far the largest regulated by MSHA - both by tonnage and number of operations (many of which are very small) – the agency should delineate its data collection and inspector training for the aggregates industry from such services for the collective ‘metal/non-metal’ sector.

Key Points – Education and Training:

  • MSHA should place specific emphasis in its inspector training programs for aggregate operations on the need for consistency in properly interpreting MSHA regulations, and appropriate evaluations of significant and substantial citations, as well as negligence.

  • MSHA should continue its commitment to work proactively with industry on education and training via the MSHA-NSSGA Alliance.

  • MSHA should collaborate with the industry to establish a voluntary safety program for which adherence would afford relief from certain inspections and enforcement actions, and focus enforcement on those operators with the poorest safety records.

  • NSSGA encourages MSHA district field offices to make available compliance assistance visits for new operations as well as operations with new owners.

  • The aggregates industry’s commitment to workplace safety is clearly illustrated by the fact that its injury incidence rate has been aggressively reduced to a record low.

  • Enforcement of MSHA standards should be proper, fair and consistent in order to ensure safety and health in the workplace.

  • Funding for the Small Mines Office should be increased so that small mines can continue to improve safety performance.



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