March 4, 2011
MSHA’s Proposed POV Rule
Under proposed guidelines, MSHA would always be right (at least when assessing POV)
by R. Brian Hendrix
On Feb. 2, 2011, the Mine Safety and Health Administration (MSHA) published its new proposal to change the current Pattern of Violations regulations (see 76 Fed. Reg. 5719-5729). A few days later, The New York Times, in an editorial titled Regulating Big Coal’s Bad Actors, characterized the proposed rule as a “stopgap step” that would nevertheless empower MSHA “to shut down a mine with a record of chronic safety violations — instead of waiting years for litigation to play out.”
You may be asking yourself whether the Times editorial board has ever bothered to actually read the Federal Mine Safety and Health Act, particularly Sections 104, 107, or 108. The Act provides every MSHA inspector with the authority to immediately shut down a mine or an area of a mine with the mere stroke of pen based on nothing more than his or her opinion about conditions in the mine or an area of the mine. MSHA and its inspectors have possessed tremendously broad enforcement authority for well over 30 years now, authority that is exercised quite regularly.
Criticizing the Times editorial board is as easy as it is worthwhile, but, sadly, that is not the purpose of this article. Rather, the purpose is to alert you to MSHA’s proposed POV rule and give you an overview of the significant differences between the proposed rule and the existing rule. To be sure, the proposed POV rule marks a major departure from the current rule. It operates primarily on the assumption that MSHA is always right, and it is a poorly veiled attempt by MSHA to force operators to develop comprehensive “safety and health management programs.” Before explaining how the proposed rule would work, it is important to understand how the existing Pattern of Violation rule works.
Existing POV rules
Section 104(e) of the Mine Act authorizes MSHA to identify mines that exhibit a “pattern of violations.” When it identifies a mine that exhibits such a pattern, Section 104(e) authorizes MSHA to notify the operator and to issue an order withdrawing all persons from the affected area of the mine for every Significant and Substantial (S&S) violation found at the mine within 90 days after the issuance of a POV notice. MSHA promulgated the current POV rule — 30 C.F.R. Part 104 — 20 years ago. Under the current POV rule, MSHA identifies mines that exhibit a potential pattern of violations (PPOV) using a computer program based on MSHA’s screening criteria and scoring model. MSHA primarily considers final S&S violations when making this determination, i.e., uncontested S&S violations or violations that have already made their way through litigation. Once MSHA decides that a mine has exhibited a PPOV, it notifies the mine operator with a PPOV letter that, unless it improves its compliance record within 90 days, MSHA will issue an actual POV notice under Section 104(e).
MSHA admits that, of the 68 mines that received PPOV letters between June 2007 and September 2009, “94 percent reduced the rate of S&S citations and orders by at least 30 percent, and 77 percent reduced the rate of S&S citations and orders to levels at or below the national average for similar mines.” Almost all of the mine operators who have received PPOV letters got the message and, in short order, significantly improved their compliance records. Why? As you might imagine, it would be extremely difficult to operate any mine as a viable, going concern once it receives a POV notice. Until recently, MSHA had never had reason to issue a single POV notice under Section 104(e). That will, however, change if MSHA finalizes the proposed POV rule. MSHA itself estimates that 10 operators a year will receive POV notices under the new rule.
Why has MSHA decided to completely overhaul its existing POV rule? According to MSHA, it’s proposing a new rule to “simplify the existing POV criteria, improve consistency, … and more adequately achieve the statutory intent.” To “simplify” the existing criteria, MSHA plans to post its POV criteria on-line (although MSHA has not released its POV criteria), along with the violation history of each mine, in order “to allow mine operators to monitor their compliance record against the proposed POV criteria.” This would, according to MSHA, “allow mine operators to monitor their compliance record against the proposed POV criteria.”
What’s the catch? MSHA proposes to “eliminate all references to initial screening criteria.” In other words, MSHA will no longer send out PPOV letters to an operator and give the operator a chance to improve its compliance record before issuing a POV notice. Instead, MSHA will expect operators to monitor their own violation history and POV status.
If an operator thinks that it might be exhibiting a pattern of violations, MSHA will expect the operator to develop and implement a plan to improve its compliance record and show significant improvement in its record. To avoid a POV notice, MSHA will expect an operator nearing a pattern to submit a “written safety and health management plan to the district manager for approval.” Effective implementation of an MSHA-approved plan would be considered a “mitigating circumstance.”
MSHA expects that, under the proposed rule, 50 operators a year will be forced to submit a “safety and health management plan” for approval. While MSHA claims that it will take no more than five minutes a month for an operator to monitor its compliance record and pattern status, MSHA expects that development and implementation of an acceptable “safety and health management plan” will require 160 hours of a supervisor’s time and 240 hours of miners’ time for an average total cost of $22,100 per plan per mine.
If you have any experience with MSHA’s plan approval process (e.g. roof control, ventilation), you know how much authority and discretion a district manager already possesses when evaluating such plans. Under the proposed POV rule, there would be almost no limit to what a district manager can require of an operator forced to submit a “safety and health management plan,” and the operator would have virtually no opportunity to challenge the district manager’s decisions regarding the plan.
No verification of violation
That’s bad, but this is worse: MSHA intends to consider citations and orders as they are written, not final citations and orders. A citation or order represents nothing more than a single inspector’s belief that a violation exists, his estimation of its gravity, and his opinion as to the operator’s negligence. Citations and orders contain mere allegations, which an operator has both the Constitutional and statutory right to challenge in court. If an operator challenges a citation or order, MSHA must prove the inspector’s allegations with substantial evidence.
Under the current POV rule, MSHA only considers citations and orders that are final, i.e. allegations that the operator has either accepted as true (if the operator does not contest) or allegations that MSHA established with substantial evidence. Under the proposed rule, allegations in a citation or order are treated as facts, and an inspector’s opinion is all that matters. Under the proposed POV rule, MSHA will always be right. You will be guilty, regardless of whether you can prove your innocence.
There’s much more in MSHA’s proposed POV rule to dislike, more than can be covered here. For example, under the proposed POV rule, MSHA will consider non-S&S violations, such as recordkeeping violations, when determining if an operator has exhibited a “pattern.” MSHA will also consider non-S&S orders, e.g. Section 103(k) orders. Instead of reviewing every mine’s compliance history annually, it will review it twice a year. Suffice it to say, it is worth the time to read the proposed rule for a more complete sense of where the industry may be heading.
What can be done about the proposed rule? The proposed rule is not final, and mine operators may submit comments on the proposal to MSHA. MSHA seems very committed to finalizing the proposed rule as is, without significant changes, but operators can and should comment on the proposal. It is certainly possible that the final rule will also be challenged in court, though it is difficult (but certainly not impossible) for an operator to prevail in any rulemaking challenge. Thus, it may make sense to ask Congress to intervene.
If MSHA insists on a new POV rule, it should actually be aimed at recalcitrant mine operators who have not responded to other enforcement actions and are actually endangering the health and safety of miners. Of course, MSHA could achieve the same goal simply by enforcing its current POV rule or by using all of the other enforcement tools Congress provided to MSHA more than 30 years ago.
R. Brian Hendrix is a partner at Patton Boggs LLP’s Washington, D.C., office. He may be reached via phone at 202-457-6543 or via e-mail at firstname.lastname@example.org.