MSHA issues wake-up call on POV

In case anyone was dozing and not alert to the threat posed by the Mine Act’s pattern of violation (POV) enforcement tool, the Mine Safety & Health Administration (MSHA) recently sent a wake-up call.

In December, the agency issued a press release notifying the industry that an underground, metal/nonmetal mining operation had received a pattern notice for what the agency described as “persistent serious health and safety violations.” While a press release only provides one side of the story, the enforcement action should remind the industry that MSHA has a strong enforcement weapon at its disposal – and that it is willing to use it.

Noteworthy in this action is the fact that this is the first pattern notice issued since 2014. Also, the metal/nonmetal operation targeted is the first to reach the pattern status. While many metal/nonmetal operations previously received notification from MSHA that they were at risk of receiving a notice, only coal operations had received pattern notices.

POV right now

No operator wants a POV notice, as there is a reason it has always been considered the atomic bomb of the Mine Act’s enforcement arsenal.

Under section 104(e) of the Mine Act, once a pattern notice is in place, any additional significant and substantial (S&S) citation issued results in the withdrawal of miners from the affected area. Only those necessary to correct the violation can be admitted.

Operators can be removed from Section 104(e) sanctions if no S&S violations are found within 90 days of the POV notice’s issuance. Still, if an S&S citation is issued during that period, then termination of the POV can only happen after an inspection of the entire mine results in no S&S violations.

As can be expected, the challenge operators face in extricating themselves from POV is difficult. The POV notice produces intense scrutiny from the agency and a laser focus from inspectors on conditions that present a likelihood of reasonably serious injury.

This is doubly difficult for underground mines – like the one currently caught in POV – that have four regular inspections a year.

This latest development makes it more important than ever that mine operators closely and continuously monitor their POV score set out in the Mine Data Retrieval System at msha.gov. Scores are updated every month and can quickly change based on the S&S citations and orders added or subtracted to the rolling 12-month enforcement range.

Unlike in the past, when a mine operator got a letter from the MSHA district manager indicating the operation was close to meeting the criteria for POV, that advance alert is no longer required. The expectation now is that operators be aware of their POV score and have a corrective action program in place that can immediately be presented to MSHA and effectively implemented to stave off the issuance of a notice.

This development also makes it critically important that mine operators pause right now and develop a corrective action program – one that can be quickly deployed – if a worst-case situation occurs. The agency has guidelines for these programs on its website.

As can be expected, these guidelines recommend that operators implement comprehensive operational modifications and establish aggressive benchmarks. For example, corrective action programs tend to include operator commitments to provide for more comprehensive training, retain contractor help to address specific issues identified in the violation history (i.e., housekeeping, electrical), and set up maintenance rapid action teams that are devoted solely to addressing repeated safety issues.

Recommended benchmarks are the operator goals of attaining a 50 percent reduction in the S&S rate stated on the mine’s most recent POV score and an S&S rate at or below the most recent median S&S frequency rate for mines of a similar type.

The bottom line

None of this is easy. Corrective action program commitments can have a dramatic impact on operational resources and manpower. But operators must be ready.

The alternative is a stark enforcement environment where every new S&S citation can substantially stall operations.

Bill Doran and Margo Lopez are with the law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.

---

Featured Photo: P&Q Staff