By Mark Savit
The elections are over and the new Congress is soon to be sworn in. Given that the president was re-elected and the Congress appears to be almost a carbon copy of the last, one would expect “déjà vu all over again.” Given the most recent developments, however, it doesn’t look like that’s going to be the case. I keep waiting for the voice to say “but wait, there’s more.” The biggest problem is that we don’t yet know what it is, but the early signs are not encouraging.
First, the Secretary of Labor resigned. Given the cast of characters being talked about as her replacement (of course it’s just speculation) this may not be a good thing, even though the prior Secretary was no friend of the industry. Then the Secretary of the Interior resigned. Once again, it’s not clear what will happen next at that department, but the tea leaves don’t seem to be aligning in a good pattern. It’s worth noting that there was no rumor that either would leave prior to the election, but shortly afterward, each of them suddenly felt that the tug of family and home was so strong that they simply could not stay any longer. Coincidence? Make your own decision.
To top it off, MSHA released its new Pattern of Violation (POV) rule on January 17. Although it had been proposed quite a while ago, and its release had been widely announced, it sets the tone for the direction that MSHA will be going for the next four years. This MSHA has made it abundantly clear that it is focused on enforcement, but the new POV rule takes that focus to new heights. The new rule removes any reference to final orders and bases all of its screening criteria on un-reviewed enforcement actions, apparently regardless of whether they were justified or not. It also removes the Potential Pattern of Violations warning that has been a part of the process for the prior four years.
As of this writing, it is unclear whether the screening criteria will account for citations, orders or other enforcement actions taken in error and subsequently vacated or modified by MSHA. Although the announcement issued indicates that MSHA will also consider “other information that demonstrates a serious safety management problem, such as accident, injury and illness records” as part of the screening process, it does not announce which records will be considered or how such data will be compiled or analyzed for enforcement purposes.
Finally, the new rule allows MSHA to set the POV screening criteria without formal rulemaking. Although they have said they will entertain comments regarding the criteria, there is no guarantee they will take those comments into account. It is also unclear whether there will be any forum available through which to challenge the criteria that MSHA chooses other than on strictly legal grounds.
While there’s really no question that the Act, its strict liability enforcement scheme and the tools it provides MSHA have served a purpose over the years, one has to wonder if those tools have run their course. After all, the Act is almost 50 years old, and it’s based on mining methods, conditions, labor management systems and safety philosophies that have been either replaced by more advanced technology, better management systems or completely different approaches to health and safety management. I would challenge the readers of this magazine to think of anything that they do today in their work life that is being done substantially the same way it was done in the late 1960s, when the Act was passed.
The point is, the vast majority of safety issues we are dealing with today are the very problems the Act is either ill-equipped to deal with or is simply incapable of reaching. Of course there are exceptions. There are operators who either don’t know or don’t care how to implement a modern approach to safety. But enforcing more and more strongly against all operators, regardless of their commitment to better safety and health, will not reach those issues that the Act doesn’t address in the first place.
Rather than focusing on which point of view this represents, we ought to be asking ourselves why MSHA isn’t working cooperatively with those at educational institutions and professional societies who are trying desperately to address the most intractable safety and health issues with 21st century tools. We should be curious about every possible approach to the safety issues we still face with no bias. Imagine if we were to take the view that the best approach to cancer prevention or traffic safety or infant mortality was to keep doing the same stuff we were doing in the 1960s except more of it? No one would stand for that for a minute.
What seemed so advanced 45 years ago is obsolete today. We need to stop looking backward and start looking forward, using all of the tools at our disposal. Our miners deserve as much. My email is published with this story, but if you think this is out of line, feel free to send me a letter with a 10¢ stamp.
Savit is a partner in the Denver office of Patton Boggs LLP. He can be reached at firstname.lastname@example.org.