During the 2010 Society of Mining Engineers conference in Phoenix, a small group gathered for a rather unusual session, Hot Topics: Potential Pattern of Violation—Fight or Flight or….?. Joe Driscoll, Leeville mine manager, Newmont, chaired the session, and the speakers among others included managers from the Leeville mine; Dave Lauriski, president, Safety Solutions International (a mine safety consultancy); Mark Savit, a compliance attorney for Patton Boggs; and Greg Vaught, a Nevada miner and “aspiring folk singer,” who puts safety messages to music.

In March 2009, the Mine Safety and Health Administration (MSHA) had warned Leeville, an underground gold mine in Nevada, of a potential Pattern of Violations (POV).

It was the only hardrock mine on the list and Driscoll and other Leeville miners explained why they thought the POV status was unfair. Even though the mine had a strong safety program in place, they had become ensnared in the agency’s complex equation for determining POV status. The message from Lauriski, a former head of MSHA, was clear: these are the new enforcement policies and it’s not going to get any easier. Savit tried to explain the complicated method by which the agency determined POV status and unveiled for new software that might help the mines better manage MSHA citations (See Operating Strategies). Vaught debuted his song, “MSHA Blues.”

Fast forward three months and the Massey Energy Upper Big Branch (UBB) mine in West Virginia suffers the worst U.S. mining disaster in 40 years. Politicians decided to pass new laws to protect miners. The first of these new laws came in the form of an amendment for compliance reporting for publicly-held companies attached to the Financial Regulatory Reform Legislation. Publicly-listed mining companies must now report safety violations to the Securities Exchange Commission (SEC). The disclosure is an effort to shame the mining business and it saddles the industry with another layer of paperwork. Another provision requires mining companies to disclose in SEC reports all payments made to foreign governments or the federal government for the purpose of the commercial development of minerals.

The U.S. House of Representatives will likely pass the Miner Safety and Health Act of 2010 (H.R. 5663). The Senate will consider it when they return after summer recess. Among other provisions, it would “revamp” criteria for POV sanctions and give MSHA more authority to close a mine once a POV status has been triggered. The law’s provision will probably make it easier to place POV status on mining companies and probably weaken the company’s exit strategy. MSHA was already preparing to change its policy regarding POV status following a recent memo from the Inspector General (IG) that highlighted serious flaws in the system (See TMIC, p.22). Another IG report in March noted deficiencies in inspector training programs.

The biggest concern for mine operators is whether the POV status will be based on what’s written or what’s final. Theoretically, if POV status is based on the citation as written, then the mines are at the mercy of a potentially poorly trained mine inspector.

Hopefully the agency will complete training programs, simplify the POV calculations and make the process more transparent.

The best way for U.S. mining companies to avoid these hassles is by committing themselves to the highest safety standards and most do. According to the National Mining Association, U.S. mining operations have decreased fatal and non-fatal injuries by 72% and 64%, respectively, during the last 20 years. In 2009, more than 85% of all U.S. mines operated without a single lost time injury. The U.S. has enough mining laws in place. Before Congress overhauls mining laws, they should assess whether existing laws are being properly executed.