January 1, 2014
MSHA’s first enforcement measures for POV leave more unanswered question.
by R. Henry Moore and Jessica M. Juraksko, Contributing Editors
The “far-reaching implications” predicted by the National Mining Association (NMA) when the final Pattern of Violations (POV) Rule was announced in January 2013 are now a reality. A few days shy of only seven months after the new POV Rule (30 C.F.R. Part 104) took effect, MSHA enforced it for the first time and placed four mine operators on its POV list in October and November 2013. MSHA has completely changed its course in terms of what an operator can expect once it is issued a POV notice. The criteria once thought to be the framework for what constitutes a pattern are, according to MSHA, not considered at all once the notice is in effect. The agency has completely abandoned the criteria that were relied on in its determination to issue a POV notice.
MSHA is exercising unchecked enforcement authority to put a mine on a POV while offering no meaningful preventive guidance other than to limit the number of “significant and substantial” (S&S) citations that are issued. Thus far, there has been a great deal of discussion surrounding what an operator can do to avoid being placed on the POV list, but what are an operator’s options once this actually happens?
Though many mine operators are aware of what they believe the provision to involve, it truly is unclear as to what MSHA’s exact interpretation is regarding several critical issues. First, MSHA’s position on the criteria and how the agency intends to use such criteria to enforce the new rule and establish a pattern have been in flux. Second, what it takes to come off of POV is not as straightforward as the regulations suggest. Finally, the avenues for an operator to seek redress in the court system are paved with many roadblocks while MSHA points to ineffective and inapplicable methods to challenge a POV notice.
The authority for MSHA to issue a POV notice originates in the Mine Act itself. Congress granted the Secretary of Labor authority “to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists.” Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 814(e)(4).
The key terms in that directive are the words “criteria” and “pattern,” without which, there is no real way for a mine operator to know what puts it on a “pattern” as defined by MSHA. However, as will be discussed, MSHA has opted to exercise a great deal of discretion in its interpretation and enforcement of the new rule. In particular, how it construes the definitions of “criteria” and “pattern” is, according to the agency, within its sole discretion to establish.
The pre-2013 rule noted that only S&S citations and orders that were “final” would be considered among the criteria for POV purposes. Also, MSHA notified operators when a potential POV (PPOV) status existed at the mine, thereby allowing any discrepancies or errors in MSHA’s records to be corrected. These “pre-notice” steps have been eliminated under the new rule. As a result, when a mine gets issued a POV notice, it is initially left guessing as to what alleged violations occurred to warrant its POV status.
As stated in the rule, MSHA is to post the specific pattern criteria on its website. 30 C.F.R. § 104.2(a). Without the issuance of PPOV under the current rule, mine operators are expected to screen themselves. The onus is on the mine operator to self-track. The operator must routinely review the POV criteria on MSHA’s monitoring tool website via its single source page to determine if the pattern criteria are met. (See www.msha.gov/POV/POVsinglesource.asp.)
Once a mine is placed on POV status, according to MSHA, the screening criteria are no longer at issue. The operator cannot escape the pattern notice by simply attacking some of the criteria. MSHA contends that a new, undefined interpretation is considered by the agency to establish a pattern at that point. MSHA has taken the position that a pattern is more than an isolated violation, but not necessarily a prescribed number of S&S citations or orders. Thus, a mine operator is without any empirical data at this stage to challenge what MSHA used to issue its POV notice. Again, the agency’s discretion plays a major role in determining the outcome.
To be taken off the POV list is an even more precarious task. The rule provides that termination of the notice can occur if, after an inspection of the entire mine, MSHA finds no S&S violations or if no withdrawal orders under § 104(e) are issued within 90 days after issuance of the POV notice. There is little to no objectivity involved in such a determination. The expectations are unrealistic and quite frankly, improbable. The termination of the notice is completely within MSHA’s discretion with no true measure for the mine operator to follow.
Seeking redress in the court system once a mine is placed on POV status is costly, time consuming, and an obvious strain on an operator’s resources. Essentially, if a mine is placed on POV status, it will be forced to litigate the S&S citations and orders eventually selected by MSHA to determine if modifications to the citations/orders by an administrative law judge (ALJ) to non-S&S are sufficient to be taken off POV status. The best-case scenario for an operator would be if this were to occur at an expedited hearing, hopefully with an expeditious ruling by the ALJ. The subsequent § 104(e) withdrawal orders are also a consideration in this process. Presumably, they can be issued on a consistent basis after the POV notice is in effect, creating more alleged violations to challenge. To the extent the mine operator chooses to contest any of the § 104(e) orders, those can hopefully be consolidated and litigated along with the POV litigation as well.
Unfortunately, a mine operator is left with few options once the POV notice is issued other than to challenge the notice and litigate the S&S citations giving rise to it. It is important for a mine operator to act swiftly and file the necessary contests with the Federal Mine Safety & Health Review Commission (FMSHRC) to request that MSHA be required to provide it with all of its evaluating criteria in a timely fashion.
What the ALJs and FMSHRC will do with such challenges remains to be seen. Nevertheless, a mine should be prepared to provide as much data and evidence to its legal counsel as quickly as possible to thoroughly and adequately defend itself in these circumstances.
R. Henry Moore is a member in Jackson Kelly PLLC and is the manager of the firm’s Pittsburgh office, where he practices with the Occupational Safety and Health Practice Group. He can be reached at 412-434-8055 or via email at email@example.com.
Jessica M. Jurasko is a member in Jackson Kelly PLLC’s Pittsburgh office, where she practices with the Occupational Safety and Health Practice Group. She can be reached at 412-434-8812 or via email at firstname.lastname@example.org.