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In Ayn Rand's 1957 grand tour of a socialist future, Atlas Shrugged, the railroads, the steel mills, and just about everything government managed, doesn't run, and most capitalists have been run off and are no longer able to strive for success, costing society its standard of living. Today I ask: who will run the mines in 2017? It was a question I first asked myself after I appeared on January 29 before a United States Circuit Court of Appeals to argue that the Mine Safety and Health Administration's (MSHA) Pattern of Violations rule was an illegal rule that deprived com- panies of due process of law, imposing closures based on con- tested citations, adopted without subjecting the pattern "criteria" to mandatory rulemaking, applied retroactively, and will force an estimated 300 mines to adopt MSHA-approved "mitigating circumstance" programs that include the hiring of personnel and management changes, even though the mandat- ed provisions and details of those plans also did not undergo rulemaking and are not contained in any statute passed by Congress. Amazing as it may seem, MSHA may run the mines in 2017, at least 300 of them, unless the court overturns Ayn Rand's night- mare. Below are the "corrective action program" elements that MSHA will use to approve or not approve a "program," which is the only way to perhaps stay off a pattern of closure orders, if the MSHA computer identifies an operation as having a pattern of sig- nificant and substantial (S&S;) violations. Keep in mind that the only way off a pattern of successive closure orders, after a mine is classified as an S&S; pattern violator, is a complete mine inspec- tion without any S&S; violations…not likely to happen in Ayn Rand's world or MSHA's world. As I described to the court, when you produce millions of tons of raw materials, some of its spills and about a thousand MSHA inspectors issue S&S; citations, just like they do for 40,000 other things that happen in hundreds of thousands of miles of tunnels or roads, and on thousands of pieces of equipment, almost all of them in very safe mines. There is something wrong with this picture, and hopefully the court will not condone government leverage that forces government con- trol, just as another court rejected an Occupational Safety and Health Administration enhanced inspection program for any identified employer that did not "voluntarily" adopt a plan that required many elements and management changes, not required by standards that had undergone rulemaking. MSHA "Corrective Action Programs should address at least the following general subject areas: • Corrective actions the operator intends to take, includ- ing benchmarks or milestones that are likely to result in meaningful, measurable and significant reductions in S&S; violations; • Specific S&S; frequency rates and the dates by which these rates will be achieved; • Specific changes the operator will make to improve the qual- ity and/or increase the frequency of examinations conduct- ed by qualified and competent personnel, including examinations for violations of health and safety standards, and the methods by which hazardous conditions will be timely abated; • Any changes in mine management that recently occurred or management changes that will affect corrective actions at the mine; • The specific actions the mine management (superinten- dent/mine manager and mine foreman) will take to provide greater attention in the review of the examination books and records, and discuss the examination results with examiners each day; • The frequency with which mine management (mine super- i n t e n d e n t / m i n e m a n a g e r a n d m i n e f o r e m a n ) w i l l c o n - d u c t u n a n n o u n c e d e x a m i n a t i o n s o f t h e m i n e t o a u d i t mine examinations and compliance with health and safety standards; • The additional health and safety staff who will be added to the mine to assist in the daily auditing of compliance perfor- mance and a description of the authority they will be dele- gated to halt production/work when violations are identified; • Specific training miners will receive on miners' rights to report hazards and unsafe conditions and on protection against retaliation; • Training the mine operator will conduct for mine officials, mine examiners, competent persons and miners to address each of the conditions that caused the unacceptable levels of citations and orders; • Planned modifications or additions to engineering and/or administrative controls to address specific conditions or practices; • Identification of the personnel who will be responsible for implementing and monitoring the corrective action program; • Milestones and benchmarks for implementation of each component of the program, including dates by which they will be achieved; and • How the operator intends to ensure the corrective action program's milestones are achieved and the method by which the operator will update the district manager on the program's progress. These updates should occur as often as possible, ideally on a weekly or biweekly basis." Sadly, Ayn Rand's nightmare may begin for the mining industry, unless the court stops it, and brings reason and law to bear on an out-of-control agency. Henry Chajet is a shareholder in the Washington, D.C., region office of Jackson Lewis P.C. 56 www.coalage.com March 2014 l e g a l l y s p e a k i n g B Y H E N R Y C H A J E T Who Runs the Mine? CA_pg56_V3_CA_pg64 3/11/14 9:15 AM Page 56