MSHA Releases Final Rule on Pattern of Violations
The following summary is prepared by Adele Abrams, Esq., ASSE’s Federal
On January 17, 2013, MSHA posted its Final Rule revising Pattern of Violations (POV) procedures. The Final Rule is very little changed from the proposed rule, which is somewhat surprising given the number of concerns and issues raised in the comments on the proposed rule. The rule will be published formally in the January 23, 2013, Federal Register and will take effect on March 25, 2013.
In general, POV status is based on the number of significant and substantial (S&S)
citations/orders, the rate of these in light of the number of inspection dates, the injury/illness rate of the mine, and the number of elevated actions (Section 104(d) “unwarrantable failure” violations, Section 104(b) “failure to abate” orders, Section 104(g) training withdrawal orders, and Section 107(a) “imminent danger” orders). Once a mine is placed under POV, any new S&S citation/order issued serves as a withdrawal order shutting down that area of the mine or equipment until the cited conditions are abated. A mine stays under POV until it undergoes a completely clean inspection free of S&S citations/orders.
The major facets of the new final rule are:
1.Elimination of Proposed Pattern of Violations (PPOV). Under current
procedures, a mine that exceeds MSHA’s screening criteria is issued a PPOV
notice. The PPOV notice gives the mine an opportunity to meet with MSHA, to submit a corrective action program, and to show improvement in the number and types of citations it receives. Only if the mine fails to respond or take sufficient actions to reduce the number of citations does it go into POV.
Under the new procedure, a mine that exceeds the POV criteria (which now will be the former PPOV screening criteria minus rather than those based on final orders) is automatically placed in POV. The preamble to the rule states that mines will receive a notice that they have been placed in POV, but the opportunity to either correct MSHA’s information or to avoid POV after receiving the notice, as is currently the case with the PPOV process, will not be available. According to the preamble, the District Manager will meet with the operator after the mine receives a notice only to correct any alleged errors in the operator’s record as to the number or types of violations. In response to a question during the teleconference today, MSHA Assistant Secretary Joe Main said that mines placed under POV will be “closely monitored” but was vague on how removal from POV would occur if the citations/orders that were the predicate for the POV finding when they were issued were later vacated or reduced in gravity/negligence so they would not longer meet the criteria.
2. Self-Monitoring. In place of the PPOV notice process (where mines at risk of POV were notified by the District Manager and had the opportunity to meet and provide mitigating information), mines will be expected to self-monitor, by regularly checking MSHA’s website to see whether the mine is approaching, or exceeding, the POV criteria. The preamble states that mines that do not have computer or internet access can get information from the MSHA office and/or from MSHA inspectors during an inspection.
3. Corrective Action Plan. According to the preamble (and Assistant Secretary Main’s comments today), MSHA expects mines that meet some but not all of the criteria for POV to “proactively” contact MSHA and develop and submit a “corrective action plan” before going on POV. In the original proposed rule, MSHA
called this a “safety and health management program” but appears to have changed the name (and cut in half the cost estimate) after this created confusion about MSHA’s rulemaking initiative for a SHMP.
According to the final rule’s preamble, MSHA “may” use the corrective action plan as a mitigating factor in deciding whether the mine goes into POV. However, it is not clear whether a mine that submits a corrective action plan and then exceeds the criteria would or could still go into POV. Moreover, the corrective action plan must be approved by an MSHA District Manager in advance, and must be effective in reducing the number of S&S citations/orders issued after implementation in order for it to be considered a “mitigating factor.”
MSHA now says that a corrective action plan is not the same as a “safety and health program” or “safety and health management” program. To further emphasize the difference, MSHA reduced the estimated cost for developing a corrective action plan from $22,500 in the proposed rule to $11,500 in the final rule. The preamble to the rule links to a two page document currently on MSHA’s POV page, called “guidelines for corrective action plans” as guidance for what would be required, but that document is general and leaves many questions as to what MSHA would consider adequate, and any approval would be left to the District Manager’s discretion.
4. Elimination of final orders in the criteria for POV. Currently the PPOV screening criteria use newly issued (past 12 months) citations as an initial screen; if
the mine exceeds criteria based on newly issued citations, then an additional screen based on final orders (over the past 24 months) is considered. Only if both
sets of screening criteria were met would the mine qualify for PPOV.
Under the new procedure, not only is the PPOV stage eliminated, but so is the use of final orders as a screen. Instead the rule now states that all issued citations and orders will be considered, without giving the mine operator the opportunity to conference them with the district office or have a hearing on them before they are counted toward the POV history. There was significant opposition to this from commenters, who noted that this is a possible violation of due process rights since a penalty is imposed for alleged violations before the employer has the opportunity to seek judicial review.
During today’s telephone session on the new rule, Assistant Secretary Main gave a couple of interesting additions to what is in the rule and the preamble:
- First, the new rule, which takes effect in 60 days, will apply retroactively to citations issued prior to the effective date of the rule. MSHA will use citations issued during the 12 months prior to the rule taking effect as the basis for POV under the new rule, and it will be a rolling 12 month window
thereafter. The preamble states that generally MSHA will evaluate mines one time per year. In the past that review has taken place near the end of the calendar year. However the preamble also states that if MSHA has concerns about a particular mine, they may evaluate it at any time during the year.
- Second, to the question of what happens if a citation that, as issued, is part of the basis for the POV designation is subsequently changed , either by settlement or by the Commission, so that the POV would not have been met if the citation were issued as it is in final order, the Assistant Secretary only indicated that “errors will be corrected.” In other words, it seems unlikely there would any relief at all for the operator who is put under POV, regardless of what happens to the citations or orders in the final order.
5. Lack of Fixed Criteria for POV Status: A major concern of commenters on the proposed rule was the absence of criteria for POV status in the proposal. Instead, MSHA said it would develop those criteria later and give the public opportunity to comment on them at that time. Most industry commenters argued that that was a violation of the Administrative Procedure Act and was also illogical because, without the criteria for POV being included in the text of the rule and CFR, it was impossible to know what the impact of the rule would be.
Despite those concerns, MSHA has stayed with its proposal – the rule does not contain any specified criteria for POV. Instead the preamble states that MSHA will post criteria on its website and give the public opportunity to comment on them. In addition, as discussed above, the preamble links to what are purported to be the initial criteria, which are the current criteria for PPOV minus those that are based on final orders. Ironically, given MSHA’s assurance that the criteria will be developed with public comment, MSHA posted the initial POV criteria without any opportunity for public comment.
6. Consequences of POV: The consequences of being placed under POV are not changed by the new rule (these are partly set by statute). If an operator is placed under POV, any S&S violation automatically becomes a withdrawal order (from that area of the mine or from the piece of equipment) until the alleged violation is abated. In addition, MSHA says that it will do a wall to wall inspection of any mine in POV within 90 days; only if the inspection results in no S&S citations is the POV status terminated.