Wait ‘Till Next Year

By Bradford T. Hammock

Enforcement, Training and Outreach Are Among The Mine Safety and Health Administration’s 2014 Priorities.

Each fall, federal agencies submit their proposed budgets for the next fiscal year detailing how much money they are seeking to sustain their programs and how that money should be allocated to each program.

The agencies justify their requests and explain their priorities in their budget justifications: public documents that provide a glimpse into agency thinking.

Like all Department of Labor agencies, the Mine Safety and Health Administration (MSHA) states that its proposed budget supports the Department’s “Good Jobs for Everyone” theme by enhancing worker safety and health in the mining environment and increasing compliance with standards and regulations through training and education and improving “workers’ voices.”

MSHA boasts that it is conducting “better enforcement” with its Impact Inspection program, in particular, whereby mines with “specific compliance problems” are targeted for inspection.

According to its ambitious budget justification, “MSHA also strengthened its process for screening mines to determine if they met the criteria for a Pattern of Violation (POV) and to ensure they took the appropriate corrective steps to ensure compliance and avoid POV closure orders. There is evidence that the POV process has made mines safer.”

Whether these programs constitute “better enforcement” is debatable, but they are a centerpiece of MSHA’s Budget Justification for Fiscal Year (FY) 2014.
Strengthening Enforcement
Strengthening enforcement is the first-stated MSHA priority for FY 2014 and the agency provides the following strategies to accomplish this objective:
■ Conducting thorough mandated regular inspections.
■ Targeting the “most egregious and persistent violators” using programs such as the Impact Inspection program and the POV program.
■ Providing new resources and training to inspectors.
■ Stepping up enforcement of regulations associated with the most common causes of fatal accidents.

The continued emphasis on enforcement also is reflected in the actual dollars and cents requested by the agency. Overall, MSHA requested a budget increase of $7 million over the FY 2012 enacted appropriations.

This request breaks down to an additional $3 million for Coal Mine and Safety and Health and $2.6 million more for Metal and Nonmetal Safety and Health over the FY 2012 enacted appropriations, in large part to “fully fund enforcement personnel and provide for equipment needs.”

While funding for enforcement is up, MSHA proposes certain decreases in appropriations to non-enforcement activities, including reductions in the Small Mines Consultation program, State Grants program, and the National Mine Safety and Health Academy.

Voice in the Workplace
MSHA also is emphasizing initiatives and outreach to miners to ensure they have a “Voice in the Workplace.” MSHA believes that “miners often do not fully understand their rights and protections under the law,” which can limit the “ability of MSHA to carry out its mission.”

According to the Budget Justification, MSHA will:
■ Conduct a headquarters review of all miner discrimination complaint investigations, which will “provide an added level of accountability for the discrimination investigation process and will demonstrate MSHA’s commitment to protecting a miner’s right to report health and safety hazards without fear of retaliation.”
■ Provide miners with educational materials “at the mine site” on their rights under the Mine Act, so that they can fully exercise those rights.
■ Expand on the “monitoring” of MSHA-approved instructors who handle miners’ rights training to ensure such training is fully effective.

MSHA also recognizes that the importance of continued training for mine inspectors. Inspector training has been a significant issue for mine stakeholders as well. MSHA states that in FY 2014 it will expand distance learning for inspectors and industry; expand the use of video teleconferencing; and “expand education, compliance assistance, and outreach to the mining industry to foster a culture of safety and reduce injuries and deaths.”

It remains to be seen whether these laudable initiatives will improve training.

Reduce the Backlog
Emphasis continues on the agency’s efforts to reduce the backlog of contested cases before the Mine Safety and Health Review Commission, including continuing to work toward global settlements, encouraging districts to conduct pre-assessment safety and health conferencing, and training inspectors to perform Conference Litigation Representative duties.

MSHA notes the total backlog of cases was reduced from approximately 89,000 violations in January 2011 to approximately 50,000 violations at the end of 2012.

Finally, MSHA proposes increase in funding for standards and other regulatory activity. It is seeking to “strengthen” regulatory efforts with rulemakings on the following:
■ Exposure to respirable crystalline silica.
■ Proximity detection systems on mobile equipment in underground mines.
■ Legal identity requirements to “to better target the most egregious and persistent violators and more effectively deter future violators.”
■ Electrical product approval requirements for equipment in underground gassy mines.

As of the time of this writing, the federal government was operating on a continuing resolution and what the latest round of budget negotiations will bring is not predictable. No matter what funding MSHA receives, however, should a budget agreement be reached, we can be sure that MSHA priorities in its FY 2014 Budget Justification will remain. 

Reducing the Backlog
MSHA began implementing pre-assessment conferencing procedures in January 2012 to help reduce its backlog of cases. The agency reduced its total backlog from approximately 89,000 violations in January 2011 to approximately 50,000 violations at the end of 2012. The new procedures were based on the results of a pilot program launched by MSHA Assistant Secretary Joseph A. Main in August 2010 that evaluated the effect of the pre-assessment conference on contested citations. The evaluation incorporated input from industry stakeholders, including mine operators and miners’ representatives. During the pilot program, operators frequently opted not to request pre-assessment conferences, but there was a high resolution rate for those that did. “Although no single strategy will reduce the backlog of contested cases before the commission, this is one aspect of a larger plan, taking advantage of reduction opportunities where they can be found and implemented,” said Main.

Bradford T. Hammock is a partner in the Washington, D.C., region office of Jackson Lewis LLP.  He focuses his practice in the safety and health area, and is leader of the firm’s Workplace Safety and Health practice group. He can be reached at [email protected]

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