July 30, 2014 Celeste Monforton, DrPH, MPH 0Comment

[Updated below (8/28/14)]

Jessica Robinson at Northwest Public Radio reminds us today that penalties assessed are meaningless until they are paid. She updates us on the fatal injury death of silver miner Larry Marek, 53, who was killed in April 2011 at Hecla Mining’s Lucky Friday mine. Marek was killed by a massive rock fall. It took rescuers 10 days to recover his body. The Mine Safety and Health Administration (MSHA) investigated the incident and socked the company with citations for “unwarrantable failures to comply” with ground support standards. The agency proposed penalties of nearly $360,000, but because the firm has contested the citations, the fines remain unpaid. Robinson reports that an administrative law judge is scheduled to hear the Hecla case in November.

Larry Marek’s senseless death reminded me of Markel Koon, 58. He was operating a bulldozer at Consolidation Coal Co’s Robinson Run No. 95 mine on November 30, 2012 when he was buried alive in a coal waste impoundment. It took rescuers two weeks to recover Koon’s body. MSHA investigated the incident and issued in March 2014 three “significant and substantial” violations. Four months later, however, the penalties accompanying the citations have not yet been assessed. I asked MSHA for any insight on the cause for the delay. Their response: “It’s going through the process.”  It seems to me that four months after citations are issued, and 20 months after Markel Koon’s death, is more than enough time to calculate the penalties for three citations.

Today, MSHA announced a plan to revise its process for determining a monetary penalty. It’s unclear to me whether the changes would eliminate the kind of lag time seen in the Markel Koon’s case.  The agency said the move is designed to “promote consistency, objectivity, and efficiency.”

When MSHA proposes a penalty to a mine operator for a health or safety violation, the agency is required by its statute to consider six factors to determine the penalty amount: business size, previous history, negligence, gravity, good faith, and the employer’s ability to stay in business. The change MSHA is suggesting would put less emphasis in the penalty calculation on mine size, and give more consideration to evidence of employer negligence, the severity of the harm that could be caused by the violation, and the employer’s history of violations.

One way the agency proposes to do that is to reduce the options available to a mine inspector to characterize violations.  Currently, mine inspectors have five choices for describing an employer’s negligence:  No negligence, low negligence, moderate negligence, high negligence, and reckless disregard. MSHA proposes to streamline those to three options: not negligent, negligent and reckless disregard.  Similarly, the five current categories for likelihood of harm, (i.e., no likelihood, unlikely, reasonably likely, highly likely, and occurred) would be replaced with three: unlikely, reasonably likely, and occurred.

MSHA says the key benefit of these proposed changes are to:

“improve the efficiency of the Agency’s enforcement efforts and minimize disputes.  …Simplifying the criteria would increase objectivity and clarity in the citation and order process…[and] should result in fewer areas of disagreement and earlier resolution of enforcement issues, which should result in fewer contests of violations and proposed assessments.”

There’s no mention, however, that the changes will result in more timely assessment of penalties.  For the fatality cases like Markel Koon’s, that would be another much-needed benefit.

[Update (8/28/14): Some time in the last month, MSHA proposed penalties totaling $99,156 for the violations related to Markel Koon’s death. The three violations involve failures to comply with regulations for coal waste impoundments. ]

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