By Ross Watzman & Henry Chajet
On Jan. 17, 2013, MSHA announced a final rule revising MSHA’s Pattern of Violations (POV) regulations in 30 C.F.R. Part 104. According to MSHA, “the final rule simplifies the existing POV criteria, improves consistency in applying the POV criteria, and more effectively achieves the Mine Act’s statutory intent.” The catch? The final rule, which takes effect in March, allows MSHA to issue a POV notice without first issuing a Potential POV (PPOV) notice and review (thus eliminating the 90 day improvement period) and eliminates the existing requirement that MSHA must consider final orders in its POV review.
Under current law, MSHA must issue a PPOV notice before pattern closure order enforcement can begin. Then, after a conference with the District Manager and implementation of a successful program to avoid S&S violations, MSHA currently withdraws the PPOV notice unless the district manager continues to believe a pattern of violations exists at the mine. MSHA’s amendment will revise that system by forcing operators to self-track through the compliance monitoring tool on the MSHA website and to proactively spend resources to prevent pattern consideration, without any prior pattern notice from MSHA.
Its logic for eliminating the PPOV process is that it believes some mines only improved to remain off the POV, and the improvements made during the PPOV period declined over time. The agency believes eliminating the PPOV period will result in more sustained improvement in mines since they will not receive notice of a potential POV.
While removal of the PPOV period is troubling, MSHA’s elimination of the final order criteria is equally disconcerting. The POV was designed to provide a sanction against operators through “the issuance of a withdrawal order to an operator who has an established pattern of health and safety violations which are of such a nature as could significantly and substantially contribute to the cause and effect of mine health and safety hazards.” S. REP. No. 95-181, at 66- 67 (1977), reprinted in S. Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 6654-55 (1978) (emphasis added).
But, contrary to Congressional intent, the final rule allows MSHA to consider orders and citations that are pending an appeal when it evaluates a mine’s safety record. According to MSHA, this does not violate a mine operator’s due process rights because: (1) operators have the right to discuss citations and orders with the inspector both during the inspection and at the closeout conference; and (2) operators can request a safety and health conference with the field office supervisor or the district manager to review citations and orders and present any additional relevant information.
However, to describe the rule in Monopoly terms, the updated POV regulations amount to a “go directly to jail, do not pass go” system. Under the new rule, allegations in a citation or order are treated as facts, and an inspector’s opinion is all that matters. Stated differently, MSHA will always be right, and the operator always guilty; regardless of whether it can prove its innocence in a court of law. Unless overturned by a court in an expected industry challenge, the final rule will impose significant, onerous burdens on mine operators.
Exactly how the final rule will affect mine operators will be quantified in the coming months and year. But according to a National Mining Association (NMA) official, MSHA’s new POV rule will have “far-reaching implications.” Mine owners and operators must be vigilant about their safety and health training, policies, and procedures to ensure compliance with the law. Operators must stay on top of the enforcement history and should consider implementing a systematic evaluation process to review MSHA’s database for accuracy and potential liability. Completion of a thorough self-evaluation will ensure adequate time to implement an MSHA-approved corrective action program (CAP). Such a plan may be considered a mitigating circumstance by MSHA if it contains “concrete, meaningful measures that can reasonably be expected to reduce the number of S&S violations at the mine; are specifically tailored to the compliance problems at the mine, and contain achievable benchmarks and milestones.”
In addition, operators must begin to play a more active role in inspections and investigations to reduce the number of erroneously written citations. Operators should consider providing supervisors with sufficient training to guarantee effective participation both during the inspection and at the closeout conference. This type of training is provided by Patton Boggs and can be individually tailored to fit the operator’s needs and schedule.
All in all, the new POV rule will impose wide-ranging challenges for operators. How to deal with these challenges and the increased risk of being placed on POV is just being sketched out. But operators must be aware of the increased role they will now play in preventing issuance of POV notices and possible withdrawal orders. In the unfortunate event that an operator is placed on the POV under the new rule, the operator should consider seeking legal counsel to ensure the continued operation of the mine.