MSHA pattern of violations period open — issued versus adjudicated citations proposed

Tina Grady Barbaccia

March 31, 2011

Mine Safety and Health Administration (MSHA) has opened a comment period for its revised pattern of violations (POV).

The most significant change in proposed revisions is issued — versus adjudicated — citations to serve as the basis for MSHA’s future selection of operators deserving of POV status. Currently, a mine operator that has a potential pattern of recurrent substantial and significant (S&S) violations at a mine — infringements that could reasonably be expected to lead to a serious injury or illness — receives written notification from MSHA. This gives an operator the opportunity to review and comment on the documents upon which the potential pattern of violations is based and to then develop a corrective action program to reduce S&S violations.

MSHA says it closely monitors the affected mine’s compliance. If the operator significantly reduces its S&S violation rate, it can avoid being issued a Notice of a Pattern of Violations in accordance to Section 104(e) of the Federal Mine Safety and Health Act of 1977. If the improvement falls short of prescribed goals, MSHA will issue the notice. For each S&S violation subsequently found, MSHA will issue an order withdrawing miners from the affected area until the cited condition has been corrected. An operator can be removed from a pattern of violations when an inspection of the entire mine is completed and no S&S violations are found or no withdrawal order is issued by MSHA.

  • MSHA proposes to list its criteria for POV status on the agency’s Web site, but has not included specific criteria in the rule itself.
  • Under the current proposal, a facility can be placed into PPOV status as a result of a single inspection with multiple citations, or as a result of one or two inspections with few citations, followed by one with a large number of citations. Under the current rule and criteria, a single inspection with multiple citations and orders can place a mine into PPOV status. However, a facility is not currently placed into full POV status unless it fails to improve its performance over a period of time. This means that POV status is based on a series of inspections.
  • MSHA prefers to base POV status on citations and orders issued, as opposed to final orders, because there can be a substantial delay in the final determination of a citation or order challenged by an operator.

Potential concerns with the proposed revisions include an operator’s ability to meet an undefined regulatory target, to track a site’s unofficial POV status, and to assume regulatory culpability for citations prior to the completion of due process.

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