The National Stone, Sand & Gravel Association (NSSGA) has called on MSHA to make substantial changes to its proposed rulemaking on pattern of violations (POV) in comments submitted to the agency.
Coming on the heels of the disaster in the underground coal sector, MSHA’s proposed changes to the POV provision of the Mine Act appear aimed at empowering the agency to pursue chronic bad actors in terms of safety and health. However, some challenging provisions in the proposal suggest that the agency’s enforcement "net" might be wider than what’s mandated.
While NSSGA supports a POV provision that is workable and can facilitate the agency’s pursuit of operators not interested in worker safety or health, NSSGA also believes that the provision be well conceived and executed.
Concerns raised by NSSGA are:
- Specific criteria to be used in the selection of operators are not yet specified. It’s impossible for NSSGA to ascertain the impact of changes without precise knowledge of the way in which the agency will target operators for POV status.
- MSHA’s desire to drop the practice of informing operators that they are "potentially" eligible for placement onto the pattern is regrettable.
- MSHA should state that POV status should result from repeat violations by unresponsive operators, as Congress stipulated in the Mine Act.
- MSHA’s desire to base inclusion in POV on just issued versus fully adjudicated citations is wrong. Such citations keep operators from enjoying constitutionally protected due process rights before they risk being placed onto pattern.
- Remedial plans for getting off of pattern should not be confused with comprehensive safety and health management systems. While NSSGA applauds MSHA’s planned allowance of operators’ remedial plans for improving compliance so as to avoid pattern status, such plans should not necessarily be comprehensive SHMSs. MSHA is planning a rulemaking later this year on the SHMS issue and should not include this issue with that.
NSSGA asserts that more work needs to be done on the proposal. Public hearings should be held. Specific criteria for selection of operators for pattern status is essential. Without this, reasonable cost estimates of the new rule cannot be made. Finally, determination of an operator’s POV status must be based solely on those citations that are fully adjudicated.