Due Process is MIA from POV Rule

Therese Dunphy

February 4, 2013

In mid-January, the Mine Safety and Health Administration (MSHA) released a final rule addressing Pattern of Violations (POV). See it here

I’m sure that many operators will take exception to a number of the rule’s provisions, particularly the fact that it eliminates the initial screening and potential POV process. Instead, it puts the burden on operators to review their status, using a monthly monitoring tool on MSHA’s website (go to the POV Single Source Page and enter your MSHA Mine ID to check your status).

What troubles me most about the final rule, however, is that MSHA may now issue a POV notice based on citations that have not worked their way through the appeals process. MSHA has argued that operators are frivolously challenging citations and that it doesn’t have the resources to address all of these challenges on a timely basis, but to entirely dismiss the possibility that an inspector has written some bad paper is ludicrous.

The situation is compounded by the fact that, once an operator has received a POV notice, any future S&S violation will result in a withdrawal order. To sum it up, an inspector can write an erroneous citation that triggers a POV notice, and a single S&S violation can lead to a mine shutdown.

This rule violates an operator’s right to due process, and it’s likely to be contested in courts throughout the United States. As it should be.

In our March issue, watch for legal guidance from Jackson Kelly PLLC’s Laura Beverage and Michelle Witter on this important topic.

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