March 1, 2013
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.
A mine may be able to persuade MSHA to postpone the issuance of a POV notice by implementation of an MSHA- approved corrective action plan (CAP). Such a plan may be considered a mitigating circumstance by MSHA if it contains “concrete, meaningful measures that can reasonably be expected to reduce the number of S&S violations at the mine; are specifically tailored to the compliance problems at the mine and contain achievable benchmarks and milestones.” However, it is up to the operator to determine when to present such a plan, and it is within the discretion of the agency as to the timing of review and approval.
In short, the new POV rule permits MSHA to issue a POV notice without official warning or pre-notice issuance discussion. It is up to the operator to keep track on MSHA’s online Monthly Monitoring Tool to determine where it stands in the process. The POV Single Source page on MSHA’s website includes the Monthly Monitoring Tool; Pattern of Violations Screening Criteria; and Pattern of Violations Procedures Summary. MSHA believes that having mine operators track their own data to determine pattern order potential incentivizes operators to be more proactive about their safety and health program.
One critical component missing from the rule is that the specific criteria that will be used by MSHA to make POV determinations is not posted on the website. At this time, MSHA has provided no information regarding what the specific criteria will be. Although MSHA pledged to post the specific criteria with numerical data, it did not say when it expects to do so and has effectively avoided notice and comment on that aspect of the new rule, stating that the development of such criteria is a discretionary policy matter and may be subject to ongoing revision.
Operators are justified in their concern about the ability to exercise due process rights to determine the validity of inspectors’ enforcement actions and findings before the economic viability of a mine is jeopardized by the threat of the POV sanction. That includes the ability to effectively challenge enforcement actions in a fair and impartial forum before being categorized as a pattern violator. The informal conference process has not proven to be an effective means to resolve enforcement action disputes expeditiously, nor is there any guarantee of expeditious Commission Review in a system that is already over taxed. In fact, it is this very delay in obtaining final orders from formal contests caused by the overworked adjudication system that MSHA relies on to justify the use of issued as opposed to final enforcement action in the POV notice review process.
While MSHA asserts that the new rule will not result in an excessive number of operators being put on POV status, this remains to be seen. More information regarding the new rule and MSHA’s interpretation of POV may be found at MSHA’s POV web page: http://www.msha.gov/POV/POVsinglesource.asp.
Laura E. Beverage is a member of Jackson Kelly PLLC and manages its Denver office, where she works with the firm’s Occupational Safety and Health Practice Group. She can be reached at 303-390-0004 or via email at firstname.lastname@example.org.
Michelle Witter is an associate in Jackson Kelly PLLC’s Denver office, where she works with the firm’s Occupational Safety and Health Practice Group. She can be reached at 303-390-0036 or via email at email@example.com.