Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/387031
ROCKLAW AGGREGATES MANAGER October 2014 33 likelihood penalty points and increase the relative weight of severity penalty points as a percentage of total penalty points. e likelihood of an occurrence will be reduced from fi ve categories (no likelihood, unlikely, reasonably likely, highly likely, and occurred) to three categories (un- likely, reasonably likely, and occurred). e four existing categories of severity will be reduced from four categories to three: No Lost Workdays; Lost Workdays or Restricted Duty (LWRD); and Fatal. "Permanently Disabling" will be eliminated. e persons aff ected will also be reduced from 11 categories to two: no persons to one or more persons aff ected. • e overall point scheme is recalibrated to a 100-point scale, and the penalty amounts are increased. For most violations that are neither de minimus nor partic- ularly egregious, the assessments are likely to fall beneath the categories of "negligent," "reasonably likely," and "LWRD" or "fatal," and "one or more persons aff ected." W hile this will result in the majority of violations being assessed with identical designations, MSHA's desired consistency will come at the expense of fairness and the discretion that inspectors, district personnel, and even commission judges are currently able to ex- ercise. e penalties will also substantially increase, particularly impacting mines with signifi cant violation histories or repeat violations. To illustrate the change in penalty amounts, for a metal/non-metal operator with 50,000 annual hours worked at the mine, with no controlling entity and no repeat violation history, the penalty amounts would change as follows: Current Scheme (208 possible points) Proposed Scheme (100 possible points) 50,000 Annual Hours 4 1 No Repeat/History Points 0 0 Negligent 15 Reasonably Likely 30 14 LWRD 5 5 1 Person Aff ected 1 1 Total Points 60 36 Penalty (per table) $112 $200 For the same violation, a similar mine (with more than 10 inspection days per year) with a violation history and repeated violations would face substantially larger penalties: Current Scheme (208 possible points) Proposed Scheme (100 possible points) 50,000 Annual Hours 4 1 1.0 violations/inspection day and 0.05 repeat violations/inspection day 16 13 Negligent 20 (moderate) 15 Reasonably Likely 30 14 LWRD 5 5 1 Person Aff ected 1 1 Total Points 76 49 Penalty (per table) $403 $1,600 By shi ing the relative weight of each assessment point and in- creasing the penalty amounts, the new scheme appears to result in substantially larger penalties. For a run-of-the-mill minor violation, the penalty amount nearly doubles for a mine with no history. For a signifi cant, but not egregious history of violations, the penalty amount quadruples. e penalties would only go up for more egre- gious violations (potentially fatal, or designated as reckless). While the existing minimum penalty of $112 and the maximum penalty of $70,000 for non-fl agrant violations would be unchanged, the reality is that the point scheme is likely to raise the amounts of vi- olations across the board. Under the proposed scheme, minimum penalties for unwarrantable failure violations would also increase. With the proposed revisions, the vast majority of violations would also fall within the Signifi cant and Substantial (S&S) designation. As part of the proposed revisions, MSHA proposes defi ning "reasonably likely" as a "condition or practice cited is likely to cause an event that could result in an injury or illness." e current S&S criteria requires that MSHA prove a violation "will" result in an injury or illness. While this does not appear to be a drastic change, from a legal standpoint, it greatly lessens MSHA's burden to establish the S&S criteria. As the number of S&S designations factors into a Pa ern of Violations (POV) determination, the likelihood of a mine fi nding itself on a POV status will increase with the proposed changes. e greatest impact from MSHA's proposed changes will be in the overall rigidity of the system. ere will likely be higher penalties, less discretion in assessment of citations, more S&S fi ndings, and higher POV rates. is is a signifi cant increase in the regulatory burden upon mine operators, already greatly taxed by regulations. AM