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The Die is Cast: Associations Representing Mine Operators Sue MSHA over POV Rule

Five mining trade associations have joined together to file suit against MSHA over its pattern of violations (POV) final rule.

The five – Kentucky Coal Association, National Mining Association, National Stone, Sand & Gravel Association, Ohio Coal Association and Portland Cement Association ? filed the litigation today in the Sixth Circuit Court of Appeals.  The court covers Kentucky, Michigan, Ohio and Tennessee.  The group is represented by the Washington, D.C.-based Patton Boggs law firm.

POV is a muscular enforcement tool available to MSHA under Sec. 104(e) of the Mine Act.  Intended for chronic violators of mine safety and health standards, the provision enables MSHA to shut down that part of any POV-listed mine affected by a significant and substantial (S&S) violation.  The mine may not get off POV status until it passes an inspection completely free of an S&S citation, or if MSHA does not issue a withdrawal order within 90 days after issuing the POV notice. 

About a third of all MSHA citations and orders are written as S&S, and the number could go higher at POV sites due to increased enforcement scrutiny.  In 2011, 35% of all coal violations were written as S&S.  The figure in metal/non-metal was 28%, for an average throughout the industry of 32%.

MSHA finalized its POV rule January 23 amidst substantial opposition from mine operators.  The rule, which goes into effect Monday, breaks substantially from current practice.  Under the present scheme, MSHA notifies potential pattern violators with warning letters.  The letters offer the operator the opportunity to review the basis for MSHA’s warning as well as to implement corrective action.

However, the new regulation does away with warning letters.  Instead, the agency has posted a POV monitoring tool on its website that allows every mine to see its POV status 24/7.  Data used to populate the site are refreshed on the 15th of every month.  MSHA said it expects mine operators to check the site regularly and to contact the agency if the data indicate compliance difficulties. MSHA will review the data with the operator and encourage it to develop a corrective action plan.  The approach is intended to replace agency issuance of warning letters.

In the final rule, MSHA gave itself latitude to change its POV threshold criteria at any time.  Operators would be given a chance to review and comment on the criteria before they become effective.  However, other than saying it would consider all comments, the agency would not commit to making any changes based on them.

The most controversial part of the final rule, though, is MSHA’s decision to use issued citations, rather than final orders of the Federal Mine Safety and Health Review Commission, as criteria in determining POV status.  Currently, operators must first meet a set of final order criterion before MSHA labels them pattern violators.  Operators assert the change denies them their constitutional due process rights to challenge the paper before MSHA acts on it.

If an operator contests a citation, years could go by before it is finally adjudicated.  Thus, MSHA’s argument for acting on the basis of issued citations is that litigation triggers a time lag which thwarts the intent of the Mine Act to bring operators to justice quickly who thumb their noses at the law.  The agency also argues that any operator facing a POV threat has the option of seeking an expedited hearing before a Commission judge.

“The Mine Act’s expedited review procedure satisfies the Constitution’s due process requirements,” MSHA said in the preamble to the final rule.   

In that section of the rule, MSHA also cited a 1950 U.S. Supreme Court decision to support its position. According to MSHA, the High Court has held that adequate post-deprivation procedures are sufficient to satisfy due process where public health and safety are at stake.  Since operators have the post-POV option of seeking temporary relief through expedited review, MSHA is clearly banking heavily on this to satisfy any misgivings a reviewing court may have over operators’ due process concerns.

The associations’ lawsuit did not include a request for an injunction to prevent the regulation from going into effect.  Thus, beginning next week, the regulation will be the reality for operators while the case plays out in the courts, a process that could take years.

The very issuance of the POV regulation has been the exception rather than the rule, as two other MSHA rules " proximity detection and criteria/procedures for proposed assessment of civil penalties" have been stalled at the Office of Information and Regulatory Affairs (OIRA) for a combined total of nearly three years.  OIRA, an arm of the Office of Management and Budget, reviews federal agencies regulations prior to their release. 

The POV rule benefited from personal attention accorded it by former Labor Secretary Hilda Solis.  After the Upper Big Branch-South (UBBs) Mine disaster, she promised the victims’ families she would do what she could to assure the accident never happened again.  She pushed the POV rule ardently because she believed it would make mines safer.

Her subordinate, MSHA Assistant Secretary Joe Main, thinks so, too.  When the rule was promulgated, Main said, “We believe it will prevent other UBBs.”

MSHA has been asked to comment on the litigation.  We will update this article with its statement in the event it issues one.

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