Health and Safety Client Alert: MSHA Issues a Final Rule to Revise the POV System

    View Author 24 January 2013

    On Wednesday, the Mine Safety and Health Administration (MSHA) kicked off its regulatory agenda by lifting the veil on its final rule to revise the Pattern of Violations (POV) system under 30 C.F.R. Part 104. Unless overturned by a court in an expected industry challenge, the final rule will dramatically change the existing POV system and impose significant, onerous burdens on mine operators. The new rules were published yesterday in the Federal Register, and will become effective March 25, 2013. Regardless of industry comments to the contrary, the final rule adopts the agency’s core proposal from 2011 without many substantive departures, permits mine closures based on challenged violations, and eliminates procedural steps in establishing POVs, resulting in more rapid imposition mine closure orders.

    Primarily, the final rule imposes five significant policy changes that operators must be aware of. The rule:

    • Eliminates the initial screening process under 30 C.F.R. § 104.2, along with the potential pattern of violations (PPOV) notice system that is currently in place; 

    • Allows MSHA to consider citations and orders as issued by MSHA inspectors for purposes of POV review, and thereby eliminate MSHA’s current requirement to only consider final orders during POV review; 

    • Merges the criteria formerly listed under § 104.3 into § 104.2, and establishes general criteria that MSHA will use to identify mines with a pattern of significant and substantial (S&S) violations;

    • Delays publication of the specific criteria that MSHA will use in making POV determinations until after the final rule is published, and likely until after the rule is effective; 

    • Eliminates the existing provision for terminating a PPOV notice under § 104.4, and replaces it with a POV termination provision that only removes an operator from POV status upon completion of a mine-wide inspection with zero S&S violations of a mandatory health or safety standard issued from that inspection. 

    Under current law, MSHA must issue a PPOV notice before pattern closure order enforcement can begin. Then, after a conference with the District Manager and implementation of a successful program to avoid S&S violations, MSHA currently withdraws the PPOV notice unless the district manager continues to believe a pattern of violations exists at the mine. MSHA’s amendment will revise that system by forcing operators to self-track through the compliance monitoring tool on the MSHA website and to proactively spend resources to prevent pattern consideration, without any prior pattern notice from MSHA.

    This significant change is exacerbated by MSHA’s decision to eliminate the provision listed under § 104.3(a)(b), which states that “only citations and orders . . . that have become final shall be used to identify mines with a potential pattern of violation.” MSHA argues that this important due process protection “has proven itself to be an impediment to MSHA’s use of section 104(e) of the Mine Act as contemplated by Congress,” and as a result, the agency eliminated it from the final rule. Consequently, all citations and orders will be treated as fact by MSHA for purposes of POV review, as soon as the paper is written and entered in the MSHA database. Additionally, there is no indication this change will reduce the number of dubious S&S citations that operators are forced to contest in the current regulatory environment.

    The effect of these amendments to current law will impose wide-ranging consequences for operators. Additional consequences could arise from MSHA’s failure to provide operators guidance through the final rule’s preamble or in the regulation’s Part 104 language on several critical issues and the criteria for establishing a pattern.

    If you have any questions regarding MSHA’s amendments to the POV system, please contact the safety and health professionals at Patton Boggs LLP for additional information.