To remedy those perceived problems, MSHA proposed a number of changes to the rule. The most significant of those changes were that MSHA would base its selection criteria not on finally adjudicated citations, but would, instead, rely on citations as issued and rather than allow mines that meet the selection criteria to have a chance to improve before POV sanctions were imposed, MSHA would go ahead and impose them immediately. Think about what those changes really mean. First, it doesn’t matter how meritorious the citations are, they are going to be used to determine if the most serious sanction that MSHA has can be imposed. Second, one will have no chance to show that their operation really isn’t as bad as MSHA thinks it is before the sanction is imposed. Pretty much a classic case of guilty until proven innocent.
Of course, industry challenged the changes in the POV rules. Of course, MSHA opposed the challenge. Their initial opposition was telling. MSHA argued that the POV rule was not a “mandatory health and safety standard,” but rather, merely a “regulation” and therefore, it could not be challenged in the court of appeals, the way most other regulations (like the dust sampling rules) are challenged. The court of appeals agreed and dismissed the case. Based on the court’s decision, industry determined that, if the rule was, as MSHA suggested, nothing more than a “regulation” that it could be challenged in the U.S. District Court under a rule that governs the promulgation of regulations generally, called the Administrative Procedures Act (APA). That makes sense.
So, taking MSHA at its word, industry refiled the challenge in federal district court under the APA. Once again, however, MSHA took the position that the regulation could not be challenged there, but rather, the only way it could be challenged would be for an operator to receive a pattern notice, contest the notice and then work it’s way back through the Federal Mine Safety and Health Commission back to the court of appeals. During that time, however, if the mine was unsuccessful at the initial stage of the challenge, it could be subject to POV sanctions during the entire time it took for the case to make its way through the courts. That would likely be three years or more.
So MSHA’s position boiled down to this. One won’t have a chance to challenge the citations that are put into POV before they get put in the POV system and there shouldn’t be any way to challenge the regulation until after one is in. Draconian to say the least.
There is some good news. The federal district court recently rejected MSHA’s position as to all but one of its arguments and the challenge filed in the court will proceed. A schedule for those proceedings is being worked out now. We are, of course, optimistic that it will go well, but at least at this point, there is a reason to believe that there is a mechanism for challenging rules like this before the sanctions are actually imposed.
With the exception of the last paragraph, I suspect most of this is old news to most of you, so why would I write about it now? I decided on this topic because, on June 29, MSHA announced that no mines had met the POV criteria during the last round of screening (See News, p. 12). Not that anyone wishes that a mine would have been picked, but isn’t it funny that this happened just as the government is ready to oppose the idea that the regulation is unduly harsh and punitive, based as it is on unproven citations.
But, more ironically, MSHA credits its changes to the POV program for the fact that it now appears it will not actually punish anyone. In support of its argument, MSHA looks to two different groups of mines, those that were subject to both potential POV sanctions (which the current rule abolished) and POV sanctions and the 200 mines that received the most violations over the same period.
First, it’s important to understand that the current POV regulation became effective in 2013. However, the data cited by MSHA in support of its argument goes back to 2010 and runs through the last POV screening period, which was roughly half way through 2016. In other words, more than half the data that MSHA relies on comes from a period before the current rule was adopted. Of course, there’s no breakdown as to whether the decline in the number of S&S citations, unwarrantable failures was primarily attributable to the prior rule, which MSHA argued was inadequate, or the current rule, which MSHA appears to credit for the entirety of the improvement.
Second, MSHA only talks about the decrease in the number of S&S citations, unwarrantable failures and “operator reported accidents.” Of course, there are less of those than there were previously. During that six-year period, U.S. coal production has declined drastically, while a number of other U.S. mining sectors have suffered significant declines in operations as well. As it turns out, the last numbers I saw from MSHA indicated that percentage of total citations that were issued as S&S or unwarrantable failures had remained fairly constant over that same period. In other words, the primary cause of the reduction cited by MSHA couldn’t be the regulation it so desperately wants to justify, but rather, just that there are fewer mines.
Once again, we are confronted with a set of figures urged on us for one purpose but which don’t, in fact, support the premise for which they are offered. The industry deserves an objective, critical analysis of the effects of the rules that are being imposed on it. This doesn’t cut it.
Mark Savit is senior counsel in the Denver, Colorado, office of Husch Blackwell. He can be reached at Mark.Savit@huschblackwell.com.