Facing a lawsuit by the mining industry over a an amended rule targeting “pattern” violators of the Mine Safety and Health Administration’s (MSHA’s) safety standards, the agency has announced the revised rule is “a law that now works.”
MSHA said in an August 11 press release (http://www.msha.gov/media/press/2015/nr-0811.asp) that as a result of its latest FY 2015 analysis, not a single operation had satisfied the POV criteria to prompt MSHA to initiate POV closure orders. That outcome, along with other POV results, led MSHA Assistant Secretary Joe Main to declare that the POV reforms have been “real game changers” in protecting miners and promoting a safety and health culture in the nation’s mines.
POV is considered one of the agency’s toughest enforcement actions. MSHA has authority under the Mine Act to issue a POV notice to mine operators who show a disregard for workers’ safety and health through an alleged pattern of purportedly serious violations (i.e., those classified as “significant and substantial” (S&S)). Roughly a third of all violations are classified as S&S, and any POV-listed mine will be disrupted by the withdrawal of miners for every S&S violation, until the infraction is corrected. Once listed as a POV mine, the operator has a difficult time getting delisted, since the operation first must pass a mine-wide surprise inspection free of any alleged S&S violations.
The industry sued MSHA over the revised POV regulation because, among other changes it allows MSHA to consider alleged S&S violations issued by an inspector, and POV is no longer limited to only final violations. Under previous iterations, only violations that had become final orders of the Federal Mine Safety and Health Review Commission were considered. About 30% of all S&S findings issued by inspectors are dismissed or modified after operators legally contest them, but those corrections of MSHA errors come far too late in the process to protect the industry from improper POV closures.
The lawsuit, filed in U.S. District Court for the Southern District of Ohio, asserts that the revised POV rule denies mine operators due process under the Fifth Amendment and that the new rule violates the words of the Mine Act which bases POV on “violations” not alleged “citations.” In addition, the plaintiffs claim the rule fails to adhere to statutory requirements for notice-and-comment rulemaking because MSHA never disclosed the criteria it applies to determine POV eligibility. The reforms also violate the Mine Act, the plaintiffs argue, by abandoning the former POV rule, which MSHA admitted improved safety, in favor of a rule whose impact cannot be predicted. Finally, the industry plaintiffs contend that the agency’s mandate of specific requirements for mine improvement “plans” to “mitigate” potential POV status should also have undergone rulemaking, but did not, violating the Mine Act and the APA. MSHA has asked the court to throw out the litigation on jurisdictional grounds, contending that the rule only be reviewed in the context of an enforcement action, which the industry contended would come too late to avoid repeated harm.
The industry litigants, represented by Jackson Lewis, are the coal associations of Ohio and Kentucky, National Mining Association, National Stone, Sand & Gravel Association, and Portland Cement Association.
In its August 11 press notice, MSHA said that during its latest screening, it found that only one of the nation’s approximately 13,600 mines (a coal operation) warranted further review. However, once the review was completed, even this mine no longer merited further consideration for a POV notice. The agency conducts at least one POV review each year. The latest screening was the third since the 2013 revisions. Twelve mines were identified in the POV screening last year, nine in 2013; 110 mines were identified between 2010 and 2012. While some might attribute the lack of POV mines and closure orders as a defensive reaction to avoid further critical ALJ decisions and press that resulted from the last round, while the case is under court review, the MSHA Assistant Secretary concluded: “The POV reforms sent a message that chronic violator behavior would no longer be tolerated. That message translated into a dramatic reduction in the number of mines with chronic violation records.”
MSHA has developed two online POV tools. One allows operators to monitor each mine’s performance. The second, which calculates a mine’s S&S rate, enables mine operators to monitor their S&S violations and proactively implement a Corrective Action Program (CAP) to prevent S&S violations.
MSHA encourages a mine operator in S&S trouble to submit a CAP. If approved by MSHA and effectively implemented to cut the number of S&S violations, the agency considers it as a mitigating circumstance that may justify postponing or not issuing a POV notice. Currently, 13 active CAPs are in place in coal and metal and nonmetal mines. CAPs are an issue in the lawsuit, because the industry litigants claim MSHA has never submitted CAP requirements for notice and comment.