Aggregates Manager

October 2014

Aggregates Manager Digital Magazine

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32 AGGREGATES MANAGER October 2014 MSHA's proposed revisions to regular assessment penalty scheme promise higher penalties, less discretion. by Meredith A. Kapushion Meredith A. Kapushion is an attorney practicing in the Occupational Safety and Health Practice of Jackson Kelly PLLC's Denver office. She can be reached at 303-390-0520 or via email at PENALTIES AHEAD Bigger O n July 31, MSHA published proposed revisions to the current criteria and procedures for assessment of civil penalties. 79 Fed. Reg. 147. MSHA's stated purpose in promulgating the revisions is to place a greater emphasis on more serious safety and health conditions; reduce the number of decisions made by inspectors; promote consis- tency, objectivity, and effi ciency; and result in fewer areas of dispute and earlier resolution of enforcement issues. W hether the proposed rule is able to achieve these goals is up for debate, but the proposed rule will be a less nuanced approach that will lump assessed violations into large categories with increased overall penalty amounts. Under the Mine Act, six criteria determine the amount of the penalty for regular assessments: the appropriateness of the penalty to the size of the business, the operator's history of prior violations, whether the operator was negligent, the gravity of the violation, the good faith demon- strated in abating the violation, and the eff ect of the penalty on the operator's ability to remain in business. 30 U.S.C. § 110(i); 30 C.F.R . § 100.3. MSHA proposes a number of changes to how these criteria are evaluated: • Less emphasis placed on the size of the busi- ness as a percentage of total penalty points. However, greater weight will be given to an operator's violation history, the assessed negligence of the operator, and the assessed gravity of a violation. • Mines with fewer than 10 inspection days per year will not be assigned history points or assessed repeat violations. is will ben- efi t very small operations that do not have lengthy inspections. • Repeat violations will apply when a mine has a minimum of 10 violations, which become fi nal orders, and more than 10 inspection days over the prior 15-month period; and six repeat violations of the same citable provision of a standard, which became fi nal orders. e points assessed for incidence rates will generally increase, and larger oper- ations are likely to see an uptick in the point assessment for repeat violations. • e current categories of negligence (no, low, moderate, high, and reckless disregard) will be reduced to three categories (not negli- gent, negligent, and reckless disregard). In the current scheme, the presence of mitigat- ing circumstances distinguishes low, mod- erate, and high negligence. In the proposed scheme, mitigating circumstances are absent from the analysis. • With respect to gravity, the proposed rule will also decrease the relative weight of Rock

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