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Editorial

MSHA’S POV RULE SHOULD CONCERN ALL MINE OPERATORS

MSHA’s pattern of violations (POV) final rule has mine operators up in arms, although some more than others, since many non-coal producers believe only underground coal producers stand to feel the painful bite of the new regulation.

This complacency has some basis in fact, especially regarding non-metal plants that do not produce cement.  Of the 83 mines given one or more potential pattern notices since 2007, just two have gotten a PPOV listing: a lime plant and one producing diatomaceous earth. The biggest non-metal sub-sector, aggregates, has been spared altogether, even those underground.

Other sub-sectors have not fared as well.  Metal mines have been nabbed eight times, one twice.  Of these seven, potential pattern notices went to two surface metal mines, one facility operation and four underground metal mines.  In addition, three cement plants have been targeted.  Four facility coal plants and three surface coal operations have also been sent potential pattern letters over the six-year period.

Thus, unless you are in underground coal, the chance of being put on a pattern notice is infinitesimally small. Yet it could happen.  Impact inspections are a potential precursor to pattern status and few mining subunits, including aggregates, have been left untouched by their reach.

Moreover, no operator can deny the stark reality that a single MSHA inspector or an inspection team can write enough tickets within a 12-month period to risk putting any operator on pattern status. Unlikely?  Admittedly so.  Impossible?  Absolutely not.

Sullivan Granite Co. is a one-person intermittent dimension stone operator in Maine that reported zero hours of work in 2010.  This did not stop MSHA that year from writing $326,900 worth of citations and orders at Sullivan’s Brown’s Meadow Quarry. If MSHA had conducted a 12-month review of enforcement action at the mine in August 2010, it would have produced these numbers: 26 S&S, 18 104(b) failure to abate orders and 14 104(d) unwarrantable failure citations/ orders. 

At another intermittent operation, Hoover Trucking & Excavating, Inc.’s five-employee Weekly Pit in Oregon, a 12-month review done in March 2012 would have yielded 35 S&S, 3 104(b), 15 104(d) unwarrantable failure, 2 107(a) imminent danger and 3 104(g) alleged training infractions.  A similar review covering 2009 at Iddings Quarry, a 10-person surface stone mine in Pennsylvania, would have netted 37 S&S and 16 104(d)s.

The totals are high for such small mines.  The apparent reason is that, in all three instances, the owner got into a disagreement with the MSHA people and that led to the flurry of paper. The enforcement taken in these examples might not have been enough to put the mine into POV status, but the point is that inspectors can push the envelope at any mine at any time.  As one aggregate safety pro put it, “It [the POV rule] puts the power totally in the hands of inspectors.”

Outlaw Operators Must Be Stopped

Operators want MSHA to have the authority to put a stop to rogue operators. Otherwise, history has shown time and again that, fairly or not, the entire industry suffers the consequences.  Yet the agency already has vast powers in the Mine Act that few, if any other federal agency, enjoy. MSHA’s heft is especially evident in Secs. 104(b), 104(d), 107(a), 104(g), 108(a)(2) and 110. 

Besides serious questions about the need for it at all, the biggest beef about the new regulation rule is that it no longer considers final orders in determining POV status.  Operators see this as a due process constitutional rights violation.  Aside from the legal argument, operators point out, quite correctly, that inspectors often unduly elevate the negligence and gravity categories of many proposed citations. As a result, the classifications frequently are scaled back when final orders are handed down in contest proceedings. 

Only a single instance exists of a mine incorrectly placed on POV status, but it illustrates how likely this scenario is to play out after the rule goes into effect.  In 2008, Patriot Mining, LLC’s No. 2 underground coal mine in Virginia became the first mine at that time ever to be placed on pattern status.  It was due to an S&S violation frequency rate of just under two points above the cutoff point.  On appeal, three of six S&Ss were downgraded in final orders to non-S&S.  This put the mine below the cutoff, leading to its delisting a month later.

This real-life example lends credence to the concern expressed by the aggregate safety pro.  “I want to say that 95% of MSHA strives to do the right thing, but this one part of the new rule gives them unchecked power to unfairly penalize an operator,” he said.

MSHA has tried to reduce anxiety by saying that only three mines per year would get the POV distinction.  That prediction is down from its estimate of 10 in the proposed rule.  Asked to explain the reduction, all MSHA Chief Joe Main would say is that it reflects MSHA’s review of data since the proposal was hatched in February 2011. Some inside the Beltway think the real reason was to grease its way through White House review.

In any case, MSHA couldn’t hit a prediction if it used a calibrated crystal ball.  Agency wizards foresaw less green; i.e., a decline in fines due to fewer citations after MSHA revised its civil penalty rule in 2007, but operators got black and blue instead.

Besides removal of final orders, operators have many other reasons not to like this rule.  There are at least two underlying irritations: the agency paid virtually no attention to operators’ comments about its proposal, of which the final rule is nearly a mirror image, and the rule gives MSHA unfettered discretion. For example, who will set the specific POV criteria? MSHA. Who will decide if the criteria should change and when?  MSHA.  Who will decide what are mitigating circumstances?  MSHA. Who approves corrective action plans (CAPs)?  You get the picture.

Talk is rife about suing the agency.  For operators who think a legal victory over their due process complaint is a sure bet, we do not share your optimism.  MSHA has taken steps to blunt that argument.  Besides, the agency has been getting away with requiring abatement without due process for eons now.

Just two changes would make this rule more palatable. To add accountability to a rule now devoid of it, we suggest the agency be required to reimburse in full the costs imposed on any operator put on a pattern who is later shown not to deserve it.      That should make MSHA think twice before pulling the POV trigger.

Second, drop the ridiculous requirement that MSHA approve CAPs.  The POV threat is so intimidating (see insert, below) that an operator threatened with it should hurry to put a CAP together voluntarily.  Allow room for it to do so without interference.  Operators don’t need babysitters, and MSHA doesn’t need to give itself more work to justify asking Congress for more money and a bigger bureaucracy.

However, since neither suggestion stands any chance of coming to pass, bring on the lawyers.  It’s time to make a stand.

            Half of All PPOV Mines Close

MSHA’s potential pattern notices appear to have profound consequences. Of the 83 mines getting one or more PPOV notices since 2007, nearly half - 39 mines (47%) - have gone into some type of non-active status (temporarily idled,  non-producing or abandoned).  All are coal operations. Unfavorable economic conditions may have been a factor, but as every mine operator knows, MSHA enforcement also impacts the bottom line.

Here is the list of closed mines given PPOV notices:

Mine/Location            Operator

#1 (KY)                                  Freedom Energy Mining Co.

#1 (KY)                                  Rockhouse Energy Mining Co.

#1 (KY)                                  Stillhouse Mining, LLC

#2 (KY)                     Vision Coal, Inc.          

#4 (KY)                                  Bledsoe Coal Corp.     

Ab.Branch Rider* (KY) Bledsoe Coal Corp.

Air Quality #1(IN)          Black Beauty Coal Co.

Anna Branch Surf.(WV) Mountain Reclam..& Const.

Apache* (WV)                       New West Virginia Mining Co.

Bardo #1 (KY)                       Bardo Mining, LLC

Big Mtn. No. 16 (WV)   Pine Ridge Coal Co.          

Broad Run (WV)                   Big River Mining, LLC

Butcher Branch (KY)     Century Operations, LLC

Castle (WV)              Elk Run Coal Co., Inc.

D & C Mining (KY)      D & C Mining Corp.

Eagle (WV)               Newtown Energy, Inc.

Horizon (UT)            Hidden Splendor Resources

King I  (NM)             GCC Energy, LLC

No. 1 Washer (VA)       Commonwealth Mining, LLC

No. 1 (KY)                Conshor Mining, LLC 

No. 1 (TN)                Solid Fuel, Inc.

No. 2 (VA)                     Black Dog Coal Corp.        

No. 2 (KY)                Excel Mining, LLC      

No. 2 (VA)                Snapco. Inc.

No. 11 (TN)              National Coal Corp.

No. 14 (TN)              National Coal Corp.

No. 58 (WV)             Pay Car Mining, Inc.

No. 65 (WV)             Double Bonus Coal Co.

Parker Peerless (WV)    Marfork Coal Co., Inc.

Randolph (WV)                    Inman Energy  

RB#10 (KY)             Manalapan Mining Co.

RB #12 (KY)            Manalapan Mining Co.

Rivers Edge (WV)        Rivers Edge Mining, Inc.

Shamrock #18 (KY)     Shamrock Coal Co.

Straight Creek #1 (KY) Left Fork Mining Co.          

Tri-State One (TN)       Wilcoal Mining, Inc. 

UBB-South (WV           Performance Coal Co.        

Willow Lake (IL)          Big Ridge, Inc.        

Winifrede 12 (WV)       Laurel Coal Corp.    

*Received Pattern Notice