Magazine article Occupational Hazards

The Future of MSHA Enforcement

Magazine article Occupational Hazards

The Future of MSHA Enforcement

Article excerpt

For the mining industry's safety and health community, the past year certainly has been one of the more interesting periods in recent times. In most years, the major regulatory issues of interest arise in familiar ways from familiar sources -- the latest MSHA rulemaking proceeding or enforcement initiative, or the most recent decision issued by the Federal Mine Safety and Health Review Commission on a major legal or policy issue. Recently, however, attention has been focused on two much larger, "big picture" mine safety and health issues -- MSHA reform and MSHA's budget.

Because of the importance of these issues, all of the attention and effort that has been directed on the reform and fiscal debates has been well-deserved. It is extremely important, however, that the debate about the future of MSHA enforcement not obscure present enforcement realities. Just as the proverbial chickens should not be counted until they hatch, mine operators must not count on or take comfort in premature visions of enforcement relief. Mine operators and supervisory personnel that let their compliance guard down at a time while MSHA's traditional enforcement powers, although under siege, remain in full effect are leading with their chins.

To place these points in perspective, summarized below are: 1) the issues, status and prospects for changes in MSHA enforcement that could result from either substantive reform or budget cuts; and 2) the basic steps that mine operators and their agents must continue to take, given the present enforcement scheme, to minimize their exposure to potentially significant MSHA liability.

Substantive Reform

The OSHA/MSHA reform bill introduced by Rep. Cass Ballenger (R-NC) (HR 1834) triggered, a re-examination of the fundamental premises upon which the current mine safety regulatory program is based.

Is the mining industry so different from other industries that it needs its own special regulatory program? Are safety and health hazards at mines so different from other work sites that they must be inspected on a quarterly or semi-annual basis? Would miners be better protected if more emphasis was given to the government's role as a safety and health consultant and its "policeman" role was de-emphasized? Are the conditions and needs present in the mining industry when the 1969 Coal Act and the 1977 Mine Act were passed still present in 1996? Would gains in miner safety and health be lost or further enhanced if changes are made to the present MSHA regulatory and enforcement program?

This re-examination and the debate it has spawned, although at times very emotional and at its edges, are extremely healthy. The questions that have been raised should be raised -- they should also be examined and answered. The answer may be that much, little or no change is needed. For now, however, any answer has been postponed. Election year politics and priorities, limited legislative calendars and veto threats have stymied, if not completely stopped, the momentum that had been building for serious consideration of MSHA reform. Rep. Ballenger himself recently has conceded that prospects for substantive MSHA reform during the present session of Congress are dead.

Therefore, for the present as well as for the foreseeable future, the familiar enforcement incentives and threats imposed by the Mine Act will continue to be enforced by MSHA and confronted by mine operators.

Fiscal Reform

Because of the passions and politics surrounding any effort to substantively amend the Mine Act, the more likely vehicle through which any noticeable change in MSHA enforcement will occur is the budget process. During the past six months, MSHA operations have been directly affected by the budget process in two major ways.

First, since the 1996 fiscal year began on Oct. 1, 1995, MSHA has been funded through a series of continuing resolutions. These "temporary" appropriations have been at a level 7. …

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