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.