Rulemaking Raises More Questions Than It Answers.
By Adele Abrams
On Feb. 2, 2011, the Mine Safety & Health Administration (MSHA) issued its anticipated proposal to drastically revise its Pattern of Violations (POV) criteria, aimed at allowing the agency to crack down more quickly on mine operators it deems to be “chronic violators” of mandatory standards who have “demonstrated a disregard for the safety and health of miners.”
Although it is tempting to welcome a rulemaking, after several years in which MSHA has (without rulemaking) abruptly issued, then modified its POV criteria and has – in the process – created a byzantine system that is indecipherable to most in the industry, the proposed rule raises more questions than it answers. It is, in many ways, a charade of a rulemaking. The comment period closes on April 4, 2011, and MSHA indicated in a briefing that it will consider holding public hearings if the mining community makes a request.
A bit of background on POV may be helpful in providing context for the rulemaking. The POV language actually comes from Section 104(e) of the 1977 Mine Act, which provided MSHA with POV as an additional enforcement tool in addition to the issuance of citations, civil penalties, withdrawal orders, and injunctive relief that were established under different sections of the Act. Language in the legislative history references the tragic Scotia mine disaster, where 26 persons (miners and mine inspectors) were killed.
That mine, Congress noted, had a chronic history of persistent and serious violations that were cited, abated, but kept recurring. The mine operator has the ultimate responsibility for ensuring safety and health at the mine, and the POV provisions were a sanction to require remedial action from those operators who did not respond to MSHA’s other enforcement tools.
MSHA took its first shot at establishing POV rules in 1980, with a proposed rulemaking. Predictably, industry was overwhelmingly opposed to the proposed actions, and in 1985, MSHA withdrew the proposal. At issue, during round one, was the pending issue of what constituted a “significant and substantial” (S&S) violation.
MSHA quickly tried again, issuing an advance notice of proposed rulemaking, asking for input on whether to focus on S&S violations of a particular hazard or S&S violations throughout the mine, as well as whether having a mine in the “D chain” (under a Section 104(d)(2) unwarrantable failure sequence) was indicative that other enforcement measures had been ineffective. A proposed rule followed in 1989, containing the criteria and procedures for identifying mines with a pattern of S&S violations. That proposal was adopted in July 1990 as a final rule, codified at 30 CFR Part 104.
However, despite these regulations spelling out POV criteria and process, MSHA made zero use of it until after the agency came under scrutiny by Congress in 2006, following the Sago mine disaster. In oversight hearings that ultimately led to the passage of the 2006 MINER Act, MSHA was repeatedly asked why it neglected to use the POV tools that had been at its disposal since enactment of the 1977 Mine Act.
The agency’s response, in 2007, was to issue its first POV “policy” establishing how it would screen mines for a “Potential Pattern of Violations” (PPOV) finding, what mines would have to do to avoid being formally placed on a POV, and what had to be done to be removed from POV once placed there. The criteria have been tweaked several times since then, most recently in 2010.
One thing consistent in all POV rules and policy to date was that only “final orders” could be considered in placing a mine on POV status, although “issued” (but not finally adjudicated) citations and orders could be used for initial screening along with other criteria, such as injury/illness incidence rates. The current policy also provided for a 24-month “lookback” period to consider only S&S citations/orders that were final in making the POV determination.
This approach, of course, allowed for elimination of any contested citations/orders that were either vacated by the agency, modified to non-S&S in a settlement, or vacated or modified to non-S&S by an Administrative Law Judge or the Federal Mine Safety and Health Review Commission (or a federal appeals court) after litigation. This also allowed mine operators to exercise their due process rights – being innocent until proven guilty – before having an “issued” citation that the agency had not yet proven to be a violation to be used against it for POV qualification purposes.
That has all changed under this proposal. The most notable policy shift incorporated into the rulemaking would grant MSHA the ability to place a mine on POV simply on the basis of the “issued” but not adjudicated S&S citations/orders and other elevated actions, even when those actions are still in contest before the Commission.
The agency has also moved away from any predetermined “lookback” period and does not state any specific threshold number of S&S citations that would trigger a POV finding (unlike current policy, which stipulates a fairly large number of violations that would be a minimum for POV consideration).
Although MSHA seems to indicate that it would further refine its criteria put “put it on the website” after the final rule is adopted, it is disingenuous to ask the mining community to comment on such a vague process. It is, for all purposes, impossible to reasonably comment on a rule whose precise criteria are being kept secret until after the rule is finalized … and making this criteria via policy so that it can be modified in virtually any manner in the future to either tighten – or broaden – the POV net depending upon how many mines any current MSHA administration wishes to shut down in whole or part.
MSHA also proposes to eliminate the current “PPOV” phase in the process – which involved placing a mine on notice that it had potential POV exposure, then meeting with the District Manager to come up with actions that the mine would voluntarily take to see if they resulted in a lowering of the number of subsequent S&S citations issued, improvements in the mine’s injury/illness rates, or both.
I participated in one such PPOV meeting and, after it was pointed out to the district manager that most of the citations triggering the proposed finding were under contest and that the mine had concurrently received accolades from MSHA for its successful injury-free performance, the POV action was tabled. No such meetings will be available under the newly proposed POV criteria.
Instead, MSHA promises that it will publish on its data retrieval system some method for individual mines to see how “close” they may be to a POV finding under the “to be revealed” guidelines, and the mine can “voluntarily” submit a safety and health management program to the district manager. If the plan is approved by the District, and is implemented by the mine operator (and presumably implemented with tangible results in terms of future violations and injuries), then a POV will not be issued.
Adoption of this plan falls within the “mitigating circumstances” that the agency will consider in determining whether an operation fits the POV criteria, under proposed standard 30 CFR 104.2(a)(8). There is no actual provision for what constitutes an acceptable safety and health management program in the actual standard’s text, although the program is referenced in the preamble.
If programmatic action is not taken (or is taken but does not yield the desired results), and the mine subsequently meets the POV criteria, any S&S citation issued within 90 days of the POV finding will serve as a shut-down order for that area of the mine or affected equipment. The mine will stay on POV until it has an inspection completely free of S&S citations – in other words, any inspector can ensure that a mine remains on POV indefinitely just by issuing a single S&S citation (even if it is subsequently vacated or modified to non-S&S).
As far as the safety and health management program, MSHA has declined to provide details as to what this would require, but the agency economic impact analysis projects that 50 mines per year would adopt such programs to keep from receiving a POV finding, at a cost of about $22,000 per program.
In response to my question at the briefing for the POV rule, MSHA’s representative said that this is not the same “safety and health management program” as would be required under the separate rulemaking of the same name now underway.
Although POV carries no monetary penalty, neither does the proposed rule provide for any right of review, or any recourse to the courts in the event that an operator believes it has been improperly put under POV. Because the PPOV phase is being removed, a mine operator can find itself under POV without any advance notice other than constant monitoring of the MSHA website and the mine’s inspection record.
Appealing citations will not help, nor – it seems – will being victorious in contesting citations, as there is no mechanism proposed that would lift the POV finding if the “elevated actions” constituting the POV are withdrawn or vacated after POV has been imposed.
These are all significant issues that need to be raised by the mining community before the rule is fast-tracked into law. Congress has been pushing MSHA to place more mines on POV, and this ambiguous rulemaking could certainly do the trick.