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.
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