Origins of MSHA’s POV Authority
MSHA’s POV authority comes from the Federal Mine Safety and Health Act of 1977 (Mine Act), in which Congress granted the secretary of labor authority “to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists.” [30 U.S.C. § 814(e)(4)] The focus of the Mine Act POV provision is on significant and substantial (S&S) violations, which involve a reasonable likelihood of serious injury or illness.

Pre-2013 Rule
The MSHA first enacted regulations in 1990 establishing the criteria and procedures for identifying mines with a pattern of S&S violations (codified at 30 CFR Part 104). Under the pre-2013 rule, only citations and orders that became final through a judge’s order or were conceded and paid by mine operators could be taken into consideration before placing a mine on POV status. Further, the prior POV rule required the MSHA to notify operators when a potential POV existed at their mines and to provide operators with an opportunity to clarify any errors in MSHA’s data, raise mitigating circumstances or remedy their potential POV status.

New Rule
Under the new POV rule, the MSHA may issue an actual POV notice without first issuing a potential POV notice. The rule also eliminates the requirement that the MSHA consider only final orders in its POV review. It also puts the responsibility of monitoring POV status on mine operators by requiring that they monitor an online MSHA database.

An operator that has a mine with a pattern of S&S violations will receive written notice from the MSHA of its POV status. Within 90 days of the written notice, the mine will undergo a thorough wall-to-wall inspection. For each subsequent S&S violation identified, the MSHA will issue an order withdrawing miners from the affected area and shutting down the involved equipment until the cited condition has been corrected. The mine will remain in POV status until a complete inspection finds no S&S violations. Large underground mines may find it especially challenging to be inspected without receiving a single S&S violation.

Once in POV status, an entire mine may have to shut down due to multiple withdrawal orders. Moreover, mines in POV status also face production delays and negative publicity. Even if a mine successfully terminates a POV notice, the mine will be subject to further actions by the MSHA if it again meets the POV criteria, and could be subject to enhanced inspections.

Though the Mine Act intended for the POV provision to identify mine operators with a recurring pattern of S&S violations, the new rule may well ensnare unintended victims. For example, a mine operator may be placed in POV status unfairly because of incorrect MSHA data, because a mine inspector cited a condition as S&S improperly during an inspection, or because an S&S violation is later found to be without merit by an administrative law judge. The new rule would consider the mine on POV status regardless of these facts.

As a result, many operators and industry associations argue that the new rule denies mine operators their constitutional due process rights, and leaves mine operators with little remedy if they are mistakenly placed on POV status. Jackson Lewis currently represents a number of parties in a challenge to the POV rule now pending before the U.S. Court of Appeals for the Sixth Circuit. The petitioners in that case recently filed an emergency motion to stay the rule in light of MSHA’s announcement that it was actively adding operators to the POV list and relying on citations that predated the rule to do so.

Key Strategies to Avoid POV Charges
Since mines obtain POV status based simply on MSHA’s S&S allegations, the best way to avoid POV status is to avoid S&S citations. This requires being proactive by anticipating possible S&S conditions that are likely to arise at a mine and taking steps to forestall or rectify any such problems immediately.

However, inspectors often issue citations as S&S when the facts suggest otherwise. Avoiding POV also means training supervisors and managers to identify and respectfully challenge erroneous S&S determinations during an inspection and at the inspection closeout conference. Once the citation issues as S&S, it counts for POV, so the only way to avoid this impact is to successfully demonstrate that a condition is not S&S before the citation is issued.

To stay off of the POV list, mine operators also need to know when they are close to meeting the POV criteria. This means monitoring the mine’s compliance statistics continually. Operators should monitor their enforcement histories on the MSHA website through a systematic process aimed at finding any errors in MSHA’s data. Operators should promptly discuss any discrepancies with the local MSHA field office supervisor or district manager to prevent MSHA from acting on incorrect information. Some examples of discrepancies include citations that are entered incorrectly or have not yet been updated in MSHA’s computer system, commission decisions rendered but not yet recorded on contested citations, and citations issued in error to a mine operator instead of an independent contractor at the mine.

Mine operators also should consider contacting the local field office supervisor or district manager to implement a corrective action program when a mine nears POV status. MSHA may consider an approved and implemented corrective action plan that reduces S&S violations as a mitigating factor when deciding whether the mine attains POV status. However, such plans may carry their own risks or costs, which should be considered carefully. Finally, if the MSHA places a mine on the POV list, the operator should seek immediate legal representation.

MSHA’s recent decision to put operators on its POV list makes it clear that the MSHA is not waiting for a court’s blessing before implementing its controversial new rule. As a result, operators should not wait for a ruling before taking all available steps to avoid POV status.

Linda Otaigbe is an associate in the Washington, D.C., region office of Jackson Lewis LLP and can be reached at linda.otaigbe@jacksonlewis.com.