Yes, POV is still a thing

Someone asked us recently whether pattern of violations (POV) was still something to be worried about.

The person pointed out that from 2013 to 2017, you could not have a discussion about mine safety that did not involve a fairly strong emphasis on the Mine Safety & Health Administration’s (MSHA) POV enforcement policy. It was a constant topic at industry conferences, in the press and in the courts, where the agency and industry were embroiled in legal challenges regarding the mechanism for determining pattern.

In 2018, however, POV was not as much of a concern. The industry legal challenge is still there, though.

What’s changed

To an extent, this lower POV profile may be partially the result of MSHA’s modified workplace examination getting most of the attention over the last year. Still, the more likely reason for the reduced POV profile is the fact that mine operators and mine professionals adjusted to the compliance realities of MSHA’s pattern enforcement scheme.

The potential ramifications of pattern enforcement remain unsettling, but most operators now understand how to manage that risk.

Most mine operators have an up-to-date understanding of where they stand with respect to the pattern criteria. This is because, by necessity – and agency design – operators continuously monitor their pattern health on MSHA’s Monthly Pattern Monitoring Tool in the agency’s Data Retrieval System. This practice enabled operators to identify problematic trends and implement changes.

While the mining community is more comfortable with the POV scheme and the noise surrounding POV has died down, don’t let this lull mislead you. POV is definitely still a thing.

Although no new pattern notices have been issued beyond the handful of notices that were issued in 2013 and 2014 following the agency’s revision of the POV regulation, the rule since that time enables the agency to exert a great deal of control over companies that “voluntarily” initiate corrective action programs (CAPs) to stave off the pattern threat.

These CAPs establish comprehensive operational requirements and aggressive goals to enable operators to achieve substantial reductions in S&S (significant and substantial) citations. In many cases, these CAPs require operators to make changes to their operating procedures that are above and beyond any requirements contained in the regulations.

For instance, CAPs included operator commitments to provide more comprehensive training, hire additional personnel to bolster the workforce, retain contractor help to address issues identified in the violation history, and set up maintenance rapid action teams that are devoted to addressing repeated safety issues.

Although meeting these CAP commitments can have a dramatic economic and operational impact, companies on the verge of pattern really have very little option given the alternative. You would be hard-pressed to convince the many operators on these CAPs that POV is a concern of the past.

What’s ahead

Actually, you can probably expect the noise around pattern to go up a few more decibels in 2019. With the change in control of the House of Representatives from Republicans to Democrats, there is a virtual certainty that there will be more aggressive oversight of MSHA’s enforcement of the pattern regulation – at least from the House side.

This process essentially started in September 2018, when the ranking Democrats on the House Committee on Education & the Workforce and the Subcommittee on Workforce Protections wrote a letter to agency head David Zatezalo requesting information providing the legal basis for the agency’s recent settlement agreement with Pocahontas Coal, one of the companies that received pattern notices back in 2013.

As part of that settlement agreement, MSHA agreed to terminate the pattern notice at the mine even though a clean inspection with no S&S citations issued had not been completed – a requirement in section 104(e) of the Mine Act.

This MSHA settlement decision was also challenged by the United Mine Workers in a suit filed in a federal district court, so the POV news cycle will definitely pick up in 2019.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.