MSHA Issues Guidance on POV Corrective Action Programs
By Adele L. Abrams, Esq., CMSP and Tina M. Stanczewski, Esq., MSP
MSHA’s Pattern of Violations (POV) saga continues. On April 3, 2014, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) issued a Program Information Bulletin (PIB) detailing the corrective action program (CAP) for mines facing a POV status. The purpose of a CAP, which an MSHA district manager must approve, is to reduce the significant and substantial (S&S) violations at a mine. For MSHA, approaching or existing in POV status places a mine in the category of repeat offender. Without corrective action, the mine may face closure. The POV program is not just for coal, and a number of mines in the metal/non-metal sector are finding that they already meet three out of the four POV criteria, which then raises the issue of whether a CAP should be prepared.
But submission of a CAP, which must outline how to address “deficiencies” cited during the inspections leading to POV status, also has an aspect of self-incrimination. If the “deficiencies” are acknowledged in a submitted CAP, at the same time that the citations/orders they relate to are under contest (since POV status is now based on “issued” rather than “final” citations/orders), it is possible that acknowledging the deficiencies could be admissible in court against the mine operator when the time eventually comes to hold a hearing on the underlying citations/orders.
The CAP is a new regulatory requirement for operators, added to the 2013 POV final rule. Since the passage of the final POV rule in January 2013, which changed the entire landscape of POV monitoring, operators are now responsible for determining their potential for POV. Prior to 2013, MSHA determined an operator’s potential. Many operators remain perplexed by the change whereby issued, not finally adjudicated citations, create the mine’s POV status. Some still remember the phrase “innocent until proven guilty,” and wonder why it doesn’t apply to POV, given the significant power that MSHA has at POV-status mines: each new S&S citation serves as a closure order for that area of the mine or piece of equipment. Once placed on POV status, mine operators remain there until they have an inspection that is 100-percent free from S&S citations. Therefore, any inspector can keep a POV mine in this status simply by issuing a single S&S citation.
The April 2014 PIB reiterated MSHA’s tools aimed at assisting operators deal with POV compliance. According to MSHA, a CAP encourages mines facing POV status to be proactive. If you are approaching POV status, act now in an attempt to avoid receiving a POV Notice. Specifically, it can be a mitigating circumstance when “approved and implemented” with “concrete, meaningful, measures specifically tailored to address the repeated S&S violations accompanied by positive results in reducing S&S violations,” according to MSHA’s Procedures Summary.
The mine should create a plan to reduce its S&S violations with measurable benchmarks. If an operator may enter POV status, the CAP should be developed and submitted to MSHA for approval. Otherwise, if an operator does not submit a CAP and no other mitigating circumstances can be argued, the operator faces sanctions under Section 104(e) of the Federal Mine Safety and Health Act of 1977. There are several subject areas that must be addressed in a CAP:
1) Corrective actions the operator intends to take, including benchmarks or milestones that are likely to result in meaningful, measurable, and significant reductions in S&S violations;
2) Specific S&S frequency rates and the dates by which these rates will be achieved;
3) Specific changes the operator will make to improve the quality and/or increase the frequency of examinations conducted 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;
4) Any changes in mine management that recently occurred, or management changes that will affect corrective actions at the mine;
5) The specific actions the mine management (superintendent/ 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;
6) The frequency with which mine management (mine superintendent / mine manager and mine foreman) will conduct unannounced examinations of the mine to audit mine examinations and compliance with health and safety standards;
7) The additional health and safety staff that will be added to the mine to assist in the daily auditing of compliance performance and a description of the authority they will be delegated to halt production / work when violations are identified;
8) Specific training miners will receive on miners’ rights to report hazards and unsafe conditions and on protection against retaliation;
9) 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;
10) Planned modifications or additions to engineering and/or administrative controls to address specific conditions or practices;
11) Identification of the personnel who will be responsible for implementing and monitoring the corrective action program;
12) Milestones and benchmarks for implementation of each component of the program, including dates by which they will be achieved;
13) 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 bi-weekly basis.
The goal of the CAP is to achieve a 50-percent reduction in the S&S rate of the mine’s most recent POV report or an S&S rate at or below the most recent median S&S rate for similar mines. Once you create a CAP and MSHA approves it, you must keep it in place. Abandoning it is not taken lightly by MSHA. Consequently, if circumstances change at the mine, your CAP should be amended to reflect current safety and production conditions. Consider it a living document.
Since January 2013, when MSHA issued the final rule on POV, a number of operators have already faced the wrath of this new and expansive landscape. About seven months after the passage of the POV rule, MSHA placed four mine operators on its POV list in October and November 2013. With MSHA maintaining sole discretion on how to construe the definitions of “criteria” and “pattern,” operators must understand the POV rule and how it applies to their mine.
The key for operators is to stay off the list in the first place. This is where being proactive is key. Currently, mine operators must monitor their POV status via the Mine Data Retrieval System on the MSHA website. MSHA no longer has a duty to warn you that POV status is pending. It is now your duty. Here, operators can enter their mine ID, and a self-generating tool explains whether you are facing POV status. There are “No” and “Yes” indicators to explain the criteria to you.
To be placed in POV status there are two methods of determination. The first method requires a mine to meet the following four criteria:
(1) At least 50 citations/orders for significant and substantial (S&S) violations issued in the most recent 12 months.
(2) A rate of eight or more S&S citations/orders issued per 100 inspection hours during the most recent 12 months OR the degree of negligence for at least 25 percent of the S&S citations/orders issued during the most recent 12 months is “‘high” or “reckless disregard.”
(3) At least 0.5 elevated citations and orders [issued under section 104(b); 104(d);104(g); or 107(a) of the Mine Act] issued per 100 inspection hours during the most recent 12 months.
(4) An injury severity measure (SM) for the mine that is greater than the overall industry SM for all mines in the same mine type and classification over the most recent 12 months.
The second method requires mine to meet the following two criteria:
(1) At least 100 S&S citations/orders issued in the most recent 12 months, and
(2) At least 40 elevated citations and orders [issued under section 104(b); 104(d);104(g); or 107(a) of the Mine Act] issued during the most recent 12 months.
According to MSHA Assistant Secretary Joseph A. Main, “Mine operators should closely track their violation and injury histories.” However, MSHA encourages operators to independently track their violation and injury histories even though the MSHA POV tracking tool is supposed to be updated on the 15th of each month. The lesson is: do not rely solely on MSHA’s technology.
So what should you do if after monitoring via the MSHA website and independently, you determine that your mine has the potential to reach POV status? First, if you are in real danger of receiving a POV notice, you must develop, submit, and implement a CAP. However, if there is concern, but no real likelihood, then examine the S&S citation’s standard. If the mine repeatedly is being issued S&S citations under a specific standard, then develop a targeted program to address the issue. This may require monetary investment for engineering changes, but it may require less expensive yet new processes and procedures, training, restricted access to an area of concern, and more.
Second, are you receiving unwarrantable failure citations/orders issued as high negligence or reckless disregard under Section 104(d) of the Mine Act? These categories usually have MSHA alleging that agents of management had some knowledge about the condition or that there are no mitigating circumstances surrounding the alleged violation. Policies, training, procedures, thorough workplace examinations, and internal corrective actions are items that promote mitigating circumstances. Review your programs related to the standards issued. Ensure your management understands timely correction of possible hazards and that they have the authority to stop work, if necessary.
If elevated actions under the Act are being issued (104(b), 107(a), 104(d) and 104(g)(1)), investigate the circumstances and determine if new policies, training, or procedures are necessary. Also, review and analyze your injury rates and types of accidents. If you are encountering multiple slip and trip injuries combined with a rise in housekeeping citations (S&S or non S&S), identify what or who is creating the hazard. Look to retraining, additional hiring, new policies, or automation, to eliminate the problem.
Operators are the only ones with specific knowledge about their mine, and they are in the best position to identify and implement changes. From MSHA’s perspective, the CAP is a method for operators to be proactive in determining what approach best fits their situation. For operators, it may be a cumbersome and costly addition to their already time-constrained lives, but it is necessary to avoid the peril of the POV. Ultimately, for now, it is a process that we all must accept.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Maryland. Abrams provides consultation, safety audits and training services to MSHA- and OSHA-regulated companies. Contact Abrams at email@example.com or visit safety-law.com for more information.
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