Rock Products

MAR 2013

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How to Deal with MSHA���s New Pattern of Violations Rule By Ross Watzman & Henry Chajet On Jan. 17, 2013, MSHA announced a final rule revising MSHA���s Pattern of Vi��� olations (POV) regulations in 30 C.F.R. Part 104. According to MSHA, ���the final rule simplifies the existing POV criteria, improves consistency in applying the POV criteria, and more effectively achieves the Mine Act���s statutory in��� tent.��� The catch? The final rule, which takes effect in March, allows MSHA to issue a POV notice without first issuing a Potential POV (PPOV) notice and re��� view (thus eliminating the 90 day im��� provement period) and eliminates the existing requirement that MSHA must consider final orders in its POV review. 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 suc��� cessful program to avoid S&S violations, MSHA currently withdraws the PPOV notice unless the district manager con��� tinues to believe a pattern of violations exists at the mine. MSHA���s amendment will revise that system by forcing opera��� tors to self���track through the compli��� ance monitoring tool on the MSHA website and to proactively spend re��� sources to prevent pattern considera��� tion, without any prior pattern notice from MSHA. Its logic for eliminating the PPOV process is that it believes some mines only improved to remain off the POV, and the improvements made during the PPOV period declined over time. The agency believes eliminating the PPOV period will result in more sustained im��� provement in mines since they will not receive notice of a potential POV. While removal of the PPOV period is troubling, MSHA���s elimination of the final order criteria is equally disconcert��� 74 ROCKproducts ��� MARCH 2013 ing. The POV was designed to provide a sanction against operators through ���the issuance of a withdrawal order to an op��� erator who has an established pattern of health and safety violations which are of such a nature as could significantly and substantially contribute to the cause and effect of mine health and safety haz��� ards.��� S. REP. No. 95���181, at 66��� 67 (1977), reprinted in S. Subcomm. on Labor, Comm. on Human Res., Legisla��� tive History of the Federal Mine Safety and Health Act of 1977, at 6654���55 (1978) (emphasis added). But, contrary to Congressional intent, the final rule allows MSHA to consider orders and citations that are pending an appeal when it evaluates a mine���s safety record. According to MSHA, this does not violate a mine operator���s due process rights because: (1) operators have the right to discuss citations and orders with the inspector both during the inspection and at the closeout con��� ference; and (2) operators can request a safety and health conference with the field office supervisor or the dis��� trict manager to review citations and orders and present any additional rel��� evant information. However, to describe the rule in Mo��� nopoly terms, the updated POV regu��� lations amount to a ���go directly to jail, do not pass go��� system. Under the new rule, allegations in a citation or order are treated as facts, and an in��� spector���s opinion is all that matters. Stated differently, MSHA will always be right, and the operator always guilty; regardless of whether it can prove its innocence in a court of law. Unless overturned by a court in an ex��� pected industry challenge, the final rule will impose significant, onerous burdens on mine operators. Ross Watzman is a public policy lawyer with Patton Boggs LLP. He can be reached at RWatzman@PattonBoggs.com. Henry Chajet counsels and represents clients in environmental, health and safety (EH&S) matters and antitrust matters, focusing on crisis management, dispute resolution, trial and appellate litigation, standard setting, liability prevention, regulatory and congressional proceedings and ���direct purchaser��� overcharge recoveries for corporate clients in antitrust price manipulation cases. He can be contacted at hchajet@pattonboggs.com. Exactly how the final rule will affect mine operators will be quantified in the coming months and year. But ac��� cording to a National Mining Associa��� tion (NMA) official, MSHA���s new POV rule will have ���far���reaching implica��� tions.��� Mine owners and operators must be vigilant about their safety and health training, policies, and proce��� www.rockproducts.com

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