Acknowledging progress during 2009, he suggested further improvements.
"Better risk management by operators, advances in technology and greater emphasis on safety awareness in company and industry-side programs have contributed to two consecutive years of record safety performance in US mines," NMA senior vice president for regulatory affairs Bruce Watzman told a US House Education and Labor Committee hearing this week.
With 86% of all operating mines in 2009 recording no lost-time accidents, and the low total number of mining deaths beating a record only one year old, the issue at hand is not related to safety, he said.
“Operators are required by law to abate any safety citation in a reasonable time set by the inspector, irrespective of the merits of the citation or a decision to contest it – a challenge in no way relieves the operator’s obligation to abate the condition that gave rise to the citation," Watzman noted.
He suggested to federal regulators that the current backlog of citation cases can be lowered, even eliminated, administratively by improving mine safety inspector training and reinstating an informal review process which requires decisions in the dispute process be used as training tools to enhance the effectiveness of safety evaluations. This would also provide a more realistic schedule for operators to choose to accept or contest a citation.
"Recent administrative actions created an irrational process that increased the number of citations at the same time it eliminated an informal procedure for contesting them," Watzman explained.
"It has forced operators into a time-consuming, expensive adjudicatory process that does nothing to increase mine safety."
According to the NMA, adjustments made to the US Mine Safety and Health Administration from October 2006 to February 2008 – during the prior presidential administration – created the conditions for the current backlog.
“As MSHA dramatically increased the number and size of fines for suspected safety violations, increasing penalties from $US15.4 million in 2005 to $194.3 million in 2008, it also eliminated an informal conference process that allowed regulators and mine operators to discuss contested fines and adjustments,” the NMA official said.
“This has left operators with no alternative for resolving disputes but a far more costly and time-consuming, quasi-judicial process that is now their sole means of contesting fines they believe to be invalid. Under MSHA’s current system, the number and severity of uncontested fines triggers enhanced regulatory scrutiny and still higher penalties.”
Watzman noted that MSHA praised the 2008 elimination of the informal contesting process, acknowledging that the conferences led to less formal litigation and improved relationships between federal officials and the mining community. It also permitted regulators and mine operators to share information on ways to achieve compliance.
“Under this system … operators and inspectors mutually benefited from an efficient means of addressing disputed citations,” he said, noting that fees were instituted for less serious violations and were rarely appealed in the formal, quasi-judicial dispute settlement process.
He also said that MSHA citations are often based on subjective criteria implemented by insufficiently trained and inexperienced inspectors. Because these individuals are not able to learn why citations are subsequently invalidated through the current system, the practices are repeated and thus bring about even more accumulation.
“The current backlog of cases is the consequence of a series of administrative changes in procedures and redeployment of regulatory personnel, rather than an indicator of mine safety performance.”
