Is it more effective enforcement or simply another regulatory morass?

by  Laura E. Beverage and Michelle Witter

On Jan. 17, 2013, the Mine Safety and Health Administration (MSHA) released its final rule amending the existing regulations governing Pattern of Violations (POV), 30 C.F.R. Part 104. The final rule, which is slated to go into effect on March 25, 2013, basically tracks the rule proposed by MSHA for notice and comment, which means that the concerns of mine operators were essentially discounted by MSHA. If an operator is issued a POV notice, any subsequent violation characterized as “significant and substantial” (S&S) in the citation/order form will result in MSHA issuing a withdrawal order. The only way for an operator to terminate its POV status is if an MSHA inspection of the entire mine yields no S&S violations or if MSHA does not issue a withdrawal order within 90 days of the issuance of the POV notice. Clearly, the rule is one of the most onerous enforcement provisions available to MSHA.

According to the final rule, MSHA’s POV reviews will occur at least once a year and will consider the following general criteria:

• Citations for S&S violations;

• Section 104(b) failure to abate orders;

• Section 104(d) citations and withdrawal orders;

• Section 107(a) imminent danger orders;

• Section 104(g) failure to train orders;

• Enforcement orders other than § 104(e) that have been applied at the mine;

• Other information that demonstrates a serious safety or health management problem at the mine, such as:

– accident, injury, and illness records;

– lack of good faith in abatement of repeated S&S violations;

– repeated S&S violations of a particular standard or standards related to the same hazard;

– knowing and willful S&S violations;

– citations and orders issued in conjunction with an accident; and

– S&S violations of health and safety standards that contribute to the cause of accidents and injuries.

• Mitigating circumstances.

One of the most hotly debated provisions in the new POV rule is the change from the consideration of final enforcement action to issued enforcement action in the POV review process. Thus, the decision to issue a POV notice may well be based on mere allegations rather than a final adjudication.

Another concern with the new POV rule is the elimination of the potential POV notice provision before a POV notice is issued. The provisions at current 30 C.F.R § 104.4 set out a clear process for meeting with the district manager before a POV notice is issued to review the basis for the issuance of a potential pattern notice and to develop a plan to reduce the number of S&S violations within clear, identified time frames to avoid the POV notice.

MSHA indicates in the preamble to the new rule that operators facing a POV notice may meet with MSHA’s district manager for the limited purpose of discussing discrepancies in the data used to support POV. The types of discrepancies open for discussion may include circumstances where a citation or order has been vacated or modified to non S&S as a result of contest, or where a violation has been entered into MSHA’s database in error. However, the time to request, schedule, and hold this meeting will not affect the 90 day schedule for abatement in the POV notice.