You may be asking yourself whether the Times editorial board has ever bothered to actually read the Mine Act, particularly Sections 104, 107 or 108. Indeed, the Act  provides every MSHA inspector with the authority to immediately shut down a mine or an area of a mine with the mere stroke of pen based on nothing more than his or her opinion about conditions in the mine. MSHA inspectors have possessed tremendously broad enforcement authority for more than 30 years now, authority that is exercised quite regularly.

Criticizing the Times editorial board is as easy as it is worthwhile, but sadly that is not the purpose of this article. Rather, the purpose here is to alert you to MSHA’s proposed POV rule and give you an overview of the significant differences between the proposed rule and the existing rule. To be sure, the proposed rule marks a major departure from the existing rule. It operates primarily on the assumption that MSHA is always right, and it is a poorly veiled attempt by MSHA to force operators to develop “safety and health management programs.” Before we explain how the proposed rule would work, we should explain how the existing POV rule works now.

Section 104(e) of the Mine Act authorizes MSHA to identify mines that exhibit a “pattern of violations,” and to issue an order withdrawing all persons from the affected area of the mine if an inspector finds a Sugnificant & Substantial (S&S) violation at the mine within 90 days after the issuance of a POV notice. MSHA promulgated the current POV rule—30 C.F.R. Part 104—20 years ago. Under Part 104, MSHA identifies mines that exhibit a potential pattern of violations (PPOV) using a computer program based on MSHA’s screening criteria and scoring model. MSHA primarily considers final S&S violations when making this determination, i.e. uncontested S&S violations or violations that have already made their way through litigation. Once MSHA decides a mine has exhibited a PPOV, it notifies the mine operator with a PPOV letter that, unless it improves its compliance record within 90 days, MSHA will issue it an actual POV notice under Section 104(e).

MSHA admits that, of the 68 mines that received PPOV letters between June of 2007 and September of 2009, “94% reduced the rate of S&S citations and orders by at least 30% and 77% reduced the rate of S&S citations and orders to levels at or below the national average for similar mines.” Almost all of the mine operators who received PPOV letters got the message and, in short order, significantly improved their compliance records. Why? It would be extremely difficult to operate any mine as a viable, ongoing concern once it receives a POV notice. Until recently, MSHA had never  issued a single POV notice. That will, however, change if MSHA finalizes the proposed POV rule. MSHA itself estimates that 10 operators a year will receive POV notices under the new rule.

Why has MSHA decided to completely overhaul its existing POV rule? According to MSHA, it’s proposing a new rule to “simplify the existing POV criteria, improve consistency…and more adequately achieve the statutory intent.” To “simplify” the existing criteria, MSHA plans to post its POV criteria on-line, along with the violation history of each mine in order “to allow mine operators to monitor their compliance record against the proposed POV criteria.” This would, according to MSHA, “allow mine operators to monitor their compliance record against the proposed POV criteria.”

The catch? MSHA proposes to “eliminate all references to initial screening criteria.” MSHA will no longer send out PPOV letters to an operator and give the operator a chance to improve its compliance record before MSHA issues a POV notice. Instead, MSHA will expect operators to monitor their own violation history and POV status. If an operator thinks it could be approaching a pattern, MSHA will expect the operator to develop a plan to improve its compliance record and show significant improvement in its record.

To avoid  a POV notice, MSHA will expect an operator nearing a pattern to submit a “written safety and health management plan to the District Manager for approval. “Effective implementation of an MSHA-approved plan would be considered a “mitigating circumstance.”

Any experience with MSHA’s plan approval process (e.g. roof control, ventilation), and you know how much authority and discretion a district manager already possesses when evaluating such plans. Under the proposed POV rule, there will almost be no limit to what a district manager can require and the operator would have virtually no recourse to challenge the district manager’s decisions.

That’s bad, but this is worse: MSHA intends to consider citations and orders as they are written, not just citations and orders. A citation or order represents nothing more than an inspector’s belief that a violation exists, his estimation of its gravity and his opinion as to the operator’s negligence. Citations or orders contain mere allegations, which an operator has both the Constitutional and statutory right to challenge in court. If an operator challenges a citation or order, MSHA must prove the inspector’s allegations with substantial evidence.

Under the existing POV rule, MSHA only considers citations and orders that are final, i.e. allegations that the operator has either accepted as true (if the operator does not contest) or allegations that MSHA established with substantial evidence. Under the new rule, allegations in a citation or order are treated as facts, and an inspector’s opinion is all that matters. Under the new POV rule, MSHA will always be right. You are guilty, regardless of whether you can prove your innocence.

There’s more in MSHA’s proposed POV rule to dislike, more than we can cover here. Suffice it to say, it is worth the time to read the proposed rule for a more complete sense of where we may be heading.

What can be done about the proposed rule? The proposed rule is not final, and operators may submit comments on it to MSHA. MSHA seems committed to finalizing the proposed rule as is, without making significant changes, but we hope operators will comment on the proposal. It is possible the final rule will be challenged in court, though it is difficult (though certainly not impossible) for an operator to prevail in any rulemaking challenge. Thus, it may make sense to ask Congress to intervene. If MSHA insists on a new POV rule the new rule should be aimed at the recalcitrant mine operators that have not responded to other enforcement tools, and are actually endangering the health and safety of miners. MSHA could achieve the same goal simply by enforcing its existing POV rule, or by using all of the other enforcement tools Congress provided it more than 30 years ago.

Hendrix is a partner with Patton Boggs LLP. He can be reached at 202-457-6543 or by e-mail at bhendrix@pattonboggs.com.