Aggregate Producers Feel the Heat as MSHA Enforcement is on the Rise

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By Katie E. Jeremiah

Regulators are under intense pressure to tighten workplace safety regulations and impose tougher penalties on violators, following several recent fatal coal mine disasters. Tensions are high between industry and lawmakers, as they seek to strike a balance between addressing workplace safety concerns and imposing costly — sometimes economic "death knell" — requirements on contractors in order to encourage workplace safety.

The Mining Safety and Health Administration (MSHA) has broad jurisdiction, ranging from expansive coal mining operations on the East Coast to small family-owned gravel quarries in Oregon. Although coal mining in Pennsylvania is dramatically different from aggregate production in Oregon, local operators are subject to the same stringent MSHA regulations.

But MSHA's rules offer little guidance to operators. It is impossible to distinguish operational and enforced requirements necessary for compliance in a quarry setting as opposed to subsurface coal mine operations. The lack of specific guidance gives MSHA unfettered discretion to enforce safety rules, which makes citations a near certainty during inspections.

In addition, operators are concerned that the enforcement climate has become too focused on the quantity and gravity of citations, rather than on a cooperative effort to create safer work environments. They have accused MSHA of operating with performance metrics that include secret enforcement quotas. MSHA denies these allegations.

Fatalities continue to occur despite increase in citations and penalties: recent data compiled by an Oregon industry group suggests that even with the recent surge in citations since 2006, there has not been an effective or measurable redirection in workplace injuries or fatalities.

How Should Mine Operators Comply?

MSHA's penalty structure imposes serious consequences on operators with multiple violations, no matter how trivial each citation may be. Operators must be diligent in their efforts to provide safe workplaces, to comply to current MSHA regulations, and to prepare for a tougher enforcement regime. To avoid the severe civil and criminal penalties imposed by current MSHA regulations and prepare for new reform, operators must:

1. Educate Workers on MSHA's "Rules to Live By." MSHA recently published a new fatality prevention initiative that focuses on 24 frequently cited standards, 13 of which are for metal/nonmetal mining.
2. Study the MSHA handbook series. Recent citations have been issued in Oregon for violations that may not otherwise fall under the "common sense" test. Operators should study the MSHA handbook series that is available. The handbooks provide very specific information that may be used by inspectors to identify MSHA violations in a quarry.
3. Report accidents to MSHA immediately. Operators who do not notify MSHA of an accident that has "reasonable potential to cause death" can face up to $60,000 in penalties. Train your workforce on the procedures to call for help and contact MSHA in the event of an emergency.
4. Give the inspector documents only upon request and a showing that it is required by law. If an inspector requests records, ask which rule requires the document to be produced. Most records do not have to be produced at the inspection, and a reasonable time is allowed for production of documents to MSHA after the inspection. Some records do not have to be produced at all.
5. Remedy unsafe conditions as soon as they are discovered. Operators face significant penalties for failure to abate a hazard that has been cited by an inspector. Even if a citation is contested, if a subsequent inspection cites the same unsafe conditions, the prior citation will be used to show that the operator was on notice and could provide a basis for an "unwarrantable failure" citation.
6. Don't argue with the inspector. An argument with an inspector is ineffective and most times detrimental and can lead to an inflamed inspector's increasing the gravity of a citation. Always remember that anything you say can and will be used against you in court, while silence is not an admission and can never be used against you. Save your arguments for the contest of the citation after you have time to organize your legal arguments.
7. Don't lie. Lying provides MSHA with a basis for criminal prosecution. This extends to oral statements as well as falsified documents.
8. Contest a citation if it is unfounded, no matter how minor the penalty. You have a constitutional right to due process. If you have a valid reason to contest a citation, contest it. Even if the citation involves only a few hundred dollars, it could mean a total mine shutdown if multiple citations are issued over time.
9. Continue educating workers and site visitors on the law. Make sure every person on the site has access to a copy of the MSHA laws, the MSHA Program Policy Manual, and the MSHA Handbook. Moreover, your workforce should have a thorough understanding of the standards and how they apply to a worksite.

With new MSHA reform in the pipeline, it is important to know the current law and how new legislation will impact your operations. If a citation is issued on a worksite, contact your attorney to discuss options to avoid significant civil and criminal penalties.

Published Summer 2010

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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