Thanks to Jim Sharpe for allowing us to publish this article!


MSHA's POV Action Leaves Room for Doubt


MSHA's announcement Thursday that three mines were facing the fallout from MSHA's nuclear option - its pattern of violation (POV) enforcement sanction - has grabbed the attention of the mining sector.

That's because it underscores the mining community's deep concern over how MSHA wields this damaging club.  Like a scarlet letter, POV violator status virtually assures the impacted mine is more out of business than in it while the sanction remains in place.  For publicly traded companies, there are the additional whammies of a hit to shareholder value and the blow to the company’s prestige. 

That there is pain is illustrated by its apparent impact on two mines subjected to the full force of the POV weapon in April 2011.  Within about a year and a half, New West Virginia Mining's Apache Mine had been abandoned, and Bledsoe Coal's Abner Branch Rider Mine in Kentucky had gone into non-producing status.

Mine operators do not object to the full force of the federal government coming down on mines that just don't get it when it comes to providing a safe and healthful workplace for their miners.  They want to see extreme outliers punished. 

Most operators actively work to prevent workplace injuries.  It's not only the right thing to do, but is entirely in their self-interest. Who can forget MSHA's universally heavy-handed enforcement practices after UBB? The disaster also brought the very real, albeit ultimately unrealized, threat of punishing new requirements from Congress.  Neither likely would have come about had MSHA singled out UBB before the April 2010 explosion, something the agency mistakenly failed to do, by the way.

But MSHA's revised rule for targeting mines has operators rightfully concerned the innocent may get caught up with the guilty.  The heart of their concern is the agency's decision to count issued citations and orders rather than finally adjudicated orders.  Issued citations come from inspectors often under pressure to cite who believe a violation has been committed.  S&S infractions are the core of the POV sanction.  When these are contested, some 20-33% of them go away after review by a neutral judge who disagrees with the inspector’s belief. 

Thus, a mine could suffer the terribly damaging consequences of a POV listing without ever having deserved it in the first place.  And, aside from the relatively toothless Equal Access to Justice Act, there is no real accountability for the agency that made the mistake. 

The point is not merely theoretical.  MSHA doesn't like to talk about it, but the agency did put a mine on POV status several years ago pending review of several contested citations, only to have to reverse itself after a judge zeroed out enough of them to get the mine off the hook.  It is absolutely right and proper for the industry to unite in court against MSHA over this naked attempt to threaten mines with what amounts to martial law.

A few other issues arise with MSHA's announcement.  Three mines were selected.  This is precisely the number MSHA predicted in its final POV rule it would single out each year.  Because MSHA surely wants to tow the line during the litigation, we do not believe any more mines will be listed this time around, even though the agency has said others remain in limbo pending a review of their injury record.

Patriot Coal has made a case its Brody No. 1 Mine does not deserve POV designation because it just acquired the mine at the beginning of the year, has replaced the old management team and has made measurable progress in improving its compliance record.  MSHA's database for the mine does not show any recent change of ownership, so it is possible the agency disagrees any was made.  But then why dismiss its improving compliance record, unless MSHA doesn't believe that either.

Patriot said it would vigorously fight the designation.  For its part, MSHA can be expected to fight tooth and nail to make the S&S citations stick at all three mines.  Thus, we believe the agency will try and arrange for a judge it believes will give it the most favorable hearing.  The legal tactic is not novel; it is likely the Sixth Circuit was selected by mine operators for their POV case for the very same reason.

The POV tool was born of a 1976 tragedy at the Scotia Mine.  Times have changed, but recurring mine tragedies demonstrate the sanction is still needed. However, because of the draconian consequences, it must be applied with great caution. That may indeed be the case here, but as long as non-adjudicated citations and orders are considered, there always will be room for doubt.

The foregoing is a service provided to subscribers of Sharpe's Point: On Mine Safety, Extracting Insights for Industry. Sharpe's Point: On Mine Safety is a publication of Sharpe Media LLC. 4519 34th Street S., Arlington,VA 22206-1914 Tel: 703-379-0652, Fax: 914-840-0716 Copyright 2013, Sharpe Media LLC.  All Rights Reserved.