MSHA’s citation campaign took a new direction in February with the agency’s announcement of its “Rules to Live By” program, designed to enforce the 24 safety standards most frequently cited by MSHA in fatal mining accident investigations. Just 2 months later, the worst mining disaster in 40 years occurred at the Upper Big Branch mine in West Virginia, putting the agency under congressional scrutiny.
“MSHA has definitely ramped up the number and variety of citations it’s issuing,” said Mark Savit, partner at Patton Boggs LLP and an expert in mining litigation and health and safety law. “It is clear that the MSHA leadership favors more stringent enforcement as the primary way to ensure safety, and they are taking unprecedented action as of late.”
Being Unprepared is “Devastating”
Smaller mine operators particularly are vulnerable to MSHA enforcement actions, as many citations carry penalties that can cripple the operating budget of a small mining company.
“I’ve never seen anything like this before,” said Savit, remarking on a recent case in which a small stone quarry was assessed over $500,000 in MSHA penalties. Savit, who began his career at the U.S. Department of the Interior where he headed MSHA’s special investigation unit, added, “The only way a small mining company can operate in this regulatory climate is to become as familiar as it can be with the MSHA citation process. The risk of being unprepared for a significant MSHA enforcement action can be devastating.”
Scott McKenna, an MSHA-certified instructor and owner of Catamount Consulting LLC, agrees. “Mine operators need to know about and respond to any violations on their sites before MSHA does, and they need to know how to deal with citations,” said McKenna. “Ignorance of rights, responsibilities, the Code of Federal Regulations and the ACRI process is simply reckless.”
ACRI, the Alternative Case Resolution Initiative, is an MSHA program in which ACRI- trained, non-attorney MSHA specialists resolve or adjudicate select enforcement disputes with mine operators arising from citations under the Mine Act. The use of the ACRI process has spread to almost every type of citation except where serious, disabling or fatal injuries are involved.
Savit and McKenna have collaborated to present at a seminar http://www.catamountconsultingllc.com/events covering the legal and procedural processes involved in field inspections, citations and ACRI resolution.
“We are helping mine operators to level the playing field,” said McKenna. “There is no argument that enforcement isn’t necessary. It’s about the cost of doing business.”
