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Reforms to the U.S. Mine Safety and Health Administration’s (MSHA) pattern of violations process in the last few years have been “a game changer in mine safety and health culture,” according to Assistant Secretary of Labor for Mine Safety and Health Joseph A. Main.
Prior to 2010, no mine had ever been issued a pattern of violations (POV) notice, one of the agency’s toughest enforcement actions reserved for mines that pose the greatest risk to the safety and health of miners through a pattern of significant and substantial violations.
Main began sweeping reforms to the POV enforcement process in 2010, driven in part by that year’s Upper Big Branch coal mine explosion in Montcoal, W.Va., which killed 29 miners.
Since the reforms, a refined POV screening process has allowed the agency to better target chronic violators and identify mines that are potential pattern violators, the agency said, citing a 76 percent drop in the number of “chronic” violators since 2010 as a significant measure of success.
“Data show that these reforms, in combination with other agency efforts, such as the impact inspection program, have led to significant reductions in the universe of chronic violators, prompted operators with troubled compliance records to improve their safety and health programs, and resulted in much safer mines in our nation,” Main said in a recent agency release.
Once an operator is given a POV notice, if a MSHA inspector finds a subsequent significant and substantial violation within 90 days, MSHA has the authority to issue a withdrawal order, shutting down production and removing miners from the affected area until the violation has been abated. A POV designation can be terminated only after an inspection of the entire mine results in no significant and substantial violations.
MSHA Gets Tough
In 2013, MSHA revised its POV rule, eliminating the potential POV notification step, by which mine operators were given a warning that they were in danger of being placed on POV status.Under the old rule, mine operators were given an opportunity to implement a corrective action plan to avoid being issued a POV notice.
The rule also eliminated the requirement that MSHA could only consider final orders in reviewing a mine’s history of violations. Under the new rule, MSHA can consider all significant and substantial citations, regardless of whether the citations are being contested and pending appeal.
Since 2010, 30 mines were notified of a potential POV designation and seven have been placed on POV status.
According to the agency, a few data points comparing results in 2010 and 2014 tell the story:
“Data also indicate that MSHA’s actions have driven better compliance well beyond the mines evaluated for POV,” said Main. Between the 2010 and 2014 screenings, there was a 30 percent drop in significant and substantial violations among the top 200 mines ranked by number of issuances, a 24 percent drop in total violations, and a 27 percent drop in elevated enforcement actions, such as closure orders, he said.
Challenging the POV Rule Reforms
The National Mining Association and four other industry groups filed suit in 2013 with the 6th U.S. Circuit Court of Appeals challenging the POV reforms. The case was dismissed Aug. 19, 2014, not on the merits of the argument, but for lack of subject matter jurisdiction.
Representing the National Mining Association in the suit, Jackson Lewis attorney Henry Chajet said the rule “violates the Mine [Safety and Health] Act and the U.S. Constitution by using contested and merely alleged violations as the basis for closure orders before the contested violations can be adjudicated.”
Chajet said the new rule is counterproductive to safety because it eliminates the opportunity to improve compliance through advance notice of pattern targeting and encourages mine closures instead of safety improvements, as the prior rule did.
In considering the petition for review of the POV rule, the court noted the Mine Safety and Health Act gives federal appeals courts jurisdiction to review only a mandatory health or safety standard, and the court concluded that the POV rule is not a mandatory health or safety standard.
By dismissing the case without prejudice, the court left open the possibility that the rule could be challenged in a different venue.
The Mine Safety and Health Review Commission also weighed in, holding that the rule is “facially valid,” in an Aug. 28, 2014, decision—but not without dissent.
Commissioner William Althen disputed the majority opinion in arguing that the criteria MSHA uses in determining POV eligibility requires notice-and-comment rulemaking. The minimum numeric thresholds determining POV eligibility were not disclosed during the rulemaking process in 2013. MSHA subsequently produced those thresholds.
“Without the notice-and-comment period required by [law], MSHA in its discretion may change the numerical or durational requirements of the specific pattern criteria. The specific pattern criteria are substantive. They deserve and require public notice and comment,” he said.
Althen also said that mine operators are entitled to a constitutionally guaranteed due process hearing before being POV-targeted. “The majority … accepts MSHA’s claim that it may enforce a POV notice severely impacting property rights of mine operators before, rather than after, any form of hearing even though such issuance of a POV notice requires more than a year of analysis and MSHA has many other enforcement weapons to deal with current, recent or ongoing violations of its regulations.”
How to Avoid POV Status
MSHA has created some online tools to help employers comply with the law.
“With the new POV rule placing the burden of monitoring enforcement history on mine operators, operators should take advantage of MSHA’s Monthly Monitoring Tool for Pattern of Violations, which can be found on the agency’s website, to track citation history on a regular basis,” said Alexa Miller, an attorney in the New Jersey office of Fisher and Phillips.
Miller also said it’s important for mine operators to understand the legal standards for significant and substantial (S&S) violations so that they can challenge any erroneous determinations during an inspection. “It is a good practice for mine operators to request an informal conference within 10 days of being issued an S&S citation to dispute the inspector’s findings and reduce the gravity of the citation to non-S&S before it’s entered into MSHA’s database,” she advised. “Remember, although contesting a citation no longer postpones the issuance of a POV notice, nothing prevents operators from formally contesting what they believe to be an improperly issued S&S citation.”
Finally, she said that operators approaching POV status should implement and submit a corrective action plan to their MSHA district manager, which may be considered as a mitigating circumstance to justify postponement or non-issuance of a POV notice.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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