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Vol. 16, No. 9 Week of February 27, 2011
Providing coverage of Alaska and Northwest Canada's mineral industry

Mining News: MSHA may topple Alaska’s placer miners

Inspectors are required to issue citations which, if not contested, may establish a pattern of violations and increase penalties

J. P. Tangen

For Mining News

Anecdotal reports are flowing in to the effect that the 200 placer mining operations in Alaska may expect visits from Mine Safety and Health Administration agents this field season and that operators should “have their checkbooks handy.” Rumor has it that the focus on placer mining was spurred, at least in part, by the Discovery Channel’s “Gold Rush Alaska” depicting some of the trials and tribulations of a start-up operation on Porcupine Creek near Haines.

MSHA is one of those government agencies out to save us from ourselves. It has an annual budget in the US$350-million-range, give or take a few tens of millions of dollars, and its mission is to make mining a safer and healthier way of life. Depending on who is doing the counting, the preliminary count for mining-related fatalities in 2010 was 71. Forty-eight of those deaths were at coal mining operations, and 29 were in a single incident at the Upper Big Branch Mine. 2010 was an especially bad year. In 2009, for instance, the total was 34 deaths.

Neither I nor anyone associated with the mining industry that I have met in the past 35 years would ever argue that even a single occupational death is within the bounds of acceptability. Nor are fatalities inevitable. On the other hand, for us, as a nation, to be spending US$5 million to US$10 million per capita to chase after a generally diminishing risk, at a minimum, requires scrutiny. According to the Bureau of Labor Statistics, 450 people died working for the government in 2009; however, I do not see (nor do I recommend) anyone advocating spending US$10 million apiece to eradicate fatalities among government workers – granted there are a lot more of them than there are of us.

Mining operations should be safe. There is little justification for any dangerous condition to exist at a mine site. Undoubtedly, MSHA examinations have substantially contributed to the saving of lives and the prevention of injuries, just as stringent environmental regulations have leveraged industry to internalize the cost of dealing with pollutants and toxic substances. The question is not one of good or bad, however; the question is one of reasonableness.

It seems the debate must be replayed over and over again. Whether it is with health care or mine safety, with gun control or with seat belts, the spread of government into every interstice of our lives continues unabated, and now we are beginning to perceive, as least partially, the costly burden of this regulatory paradigm. As a nation we have bills we cannot pay. We have entitlement programs that are wildly out of control. We have manufacturers fleeing the country, electing to risk political instability in offshore locations to escape the cost of in-your-face regulators.

MSHA has designed a framework whereby inspectors must arrive unannounced (their movements on a property cannot even be shared by the workers). The inspectors are subject to personal sanctions if they fail to issue citations for something, anything. The theory seems to be that if it is a mine, there must be something wrong. It seems to matter little that mining is safer in the United States than most, if not all, other places in the world.

For Alaska’s placer mines, if the reports are true, 2010 will be a new and fascinating experience. Under our system of government, it makes no difference if you employ one person or 1,000, the one-size-fits-all requirements of law may prove to be enormously burdensome. The propensity of MSHA inspectors to cite even the most trivial offense will be a sting. The miner will be forced to elect between paying the fine or contesting it. Contesting it will, of course, be very expensive; however, paying will have an even greater adverse consequence, because like Freddy Kreuger, the MSHA agent will be back. And when he returns, he will issue another citation, and another and another, whereupon the operator will have engaged in a “Pattern of Violations,” which will be an aggravating factor in calculating fines. Revised rules relating to patterns of violations are currently up for public comment until April 4.

Placer miners may well be accustomed to finding themselves between a rock and a hard place, figuratively and literally. They are accustomed to working their way over, under, around or through the barrier. This particular barrier, however, may prove to be a more difficult challenge than most.

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