Developments on MSHA Pattern of Violations

1. Developments on MSHA Pattern of Violations Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams PC www.safety-law.com 301-595-3520

2. Overview • MSHA has been urged by Congress to make greater use of its POV powers: 30 CFR Part 104 and Section 104(e) of Mine Act • Current statutory criteria include -- (1) A history of repeated significant and substantial violations of a particular standard; (2) A history of repeated significant and substantial violations of standards related to the same hazard; or (3) A history of repeated significant and substantial violations caused by unwarrantable failure to comply. (b) Only citations and orders that have become final shall be used to identify mines with a potential pattern of violations under this section.

3. Overview • MSHA has developed a “single source” POV page at: http://www.msha.gov/POV/POVsinglesource.asp • MSHA makes every mine’s POV status available through its Data Retrieval System (special link) – this could soon substitute for PPOV notification

4. Current POV Screening (11/10) • Two sets of screening criteria are used to perform the initial screening required under 30 CFR §104.2. Mines must meet the criteria in eitherset to be further considered for exhibiting a potential pattern of violations. I. Mines meeting allof the following four criteria are further screened to identify those that meet appropriate criteria, as specified in 30 CFR §104.3, for a potential pattern of violations: 1. At least 50 citations/orders for significant and substantial (S&S) violations issued in the most recent 12 months. 2. A rate of eight or more S&S citations/orders issued per 100 inspection hours during the most recent 12 months OR the degree of negligence for at least 25 percent of the S&S citations/orders issued during the most recent 12 months is “‘high” or “reckless disregard.” 3. At least 0.5 elevated citations and orders [issued under section 104(b); 104(d); 104(g); or 107(a) issued per 100 inspection hours during the most recent 12 months. 4. A12-month Injury Severity Measure (SM) for the mine that is greater than the overall Industry SM for all mines in the same mine type and classification over the most recent five years. (Severity Measure is the number of lost workdays per 200,000 employee-hours.)

5. Current POV Screening II. Mines meeting bothof the following two criteria are further screened to identify those that meet appropriate criteria, as specified in 30 CFR §104.3, for a potential pattern of violations. 1. At least 100 S&S citations/orders issued in the most recent 12 months. 2. At least 40 elevated citations and orders [issued under section 104(b); 104(d); 104(g); or 107(a) of the Mine Act] issued during the most recent 12 months.

6. Current POV Screening • 30 CFR § 104.3 requires that one of the following pattern criteria be met: (1) a history of repeated S&S violations of a particular standard; (2) a history of repeated S&S violations of standards related to the same hazard; or (3) a history of repeated S&S violations caused by unwarrantable failure to comply. • Only citations and orders that are final may be considered in determining if these criteria have been met. • For a pattern of violations review, mines identified during the initial screening must have at least five S&S citations of the same standard that became final orders of the commission during the most recent 12 months OR at least two S&S unwarrantable failure violations that became final orders of the commission during the most recent 12 months.

7. Current POV Procedure • Every mine’s POV status is reviewed annually by the MSHA Office of Assessments at HQ; • A memo is sent to the sector administrator listing all mines meeting PPOV criteria; • The District Manager is given 10 days to review his list and notify HQ if there are any mitigating factors (recent bona fide changes in mine ownership or management; or reductions in S&S citations/orders during the final quarter of the screening review for PPOV mines that implement a corrective action programs if mine management has made identifiable health and safety program improvements that achieve the objectives MSHA Appendix B - Guidelines for Corrective Action Programs); • A POV Panel reviews the info and reports back to the Administrators, who then notify the DM as to which PPOV notices to be issued.

8. MSHA Mitigation Programs • To (currently) meet DM criteria, a program must include: • Corrective actions the operator intends to take, including benchmarks and milestones, to reduce the frequency of S&S violations • Specific changes the operator will make to improve the quality and/or increase the frequency of examinations conducted by qualified and competent personnel • Specific actions the mine management will take to provide greater attention in the review of the examination books and records and discuss the examination results with examiners • Frequency with which mine management will conduct unannounced examinations of the mine to audit mine examinations and compliance • Additional H&S staff that will be added to assist in the daily auditing of compliance performance and the authority they will have to halt work if violations are identified • Specific training which miners will receive on miners’ rights to report hazards and unsafe conditions and on protection against retaliation • Training the mine operator will conduct for mine officials, mine examiners, competent persons and miners to address each of the conditions that caused the unacceptable levels of citations and orders issued during the screening period • Planned modifications or additions to engineering and/or administrative controls to address specific conditions or practices • Identification of the personnel who will be responsible for implementing and monitoring the corrective action program • Milestones and benchmarks for implementation of each component of the program, including dates by which they will be achieved • How the operator intends to ensure the program’s milestones are achieved and the method by which the operator will update the District Manager on the program’s progress.

9. PPOV Notices • The DM’s notification will specify the basis for identifying the mine as having a PPOV and give the operator a reasonable opportunity, not to exceed 20 days from the date of the notification, to take the following steps: • Review all documents upon which the pattern of violations evaluation is based and provide additional information; • Submit a written request for a conference with the District Manager (the District Manager shall hold any conference within 10 days of a request); and/or • Submit a corrective action program to be implemented at the mine to avoid repeated S&S violations • The operator can choose to submit to MSHA a corrective action program with benchmarks for reducing S&S violations (gets 90 days to demonstrate effectiveness) • MSHA will establish S&S violation rate goals for each operator.

10. Staying Off POV • In order to avoid receiving a POV notice, mines that do not implement an appropriate corrective action program must reduce the S&S frequency rate per 100 inspection hours: • by 70 percent from the mine’s rate during the 12-month review period (provided such reduction is below the national rate for all mines of similar type and classification during the 12-month review period). Or • to a rate within the top 35% for all mines of similar type and classification (as established during the 12-month review period), which MSHA will calculate and provide. • In order to avoid receiving a Pattern of Violations notice, mines that do implement an appropriate corrective action program must reduce the S&S frequency rate per 100 inspection hours: • by 50 percent from the mine’s rate during the 12-month review period Or • to a rate within the top 50% for all mines of similar type and classification (as established during the 12-month review period), which MSHA will calculate and provide.

11. Consequences of POV • If a mine moves from PPOV, to POV, it will receive written notice and MSHA will initiate a wall-to-wall inspection within 90 days, and for each inspection cycle thereafter. • Consequences of POV: Each additional S & S violation would mean another withdrawal order. • The violation need not involve high negligence or imminent danger in order to trigger withdrawal order! • Termination of a section 104(e)(1) of the Act pattern of violations notice shall occur when an inspection of the entire mine by MSHA finds no significant and substantial violations or if no withdrawal order is issued by MSHA in accordance with section 104(e)(1) of the Act within 90 days of the issuance of the pattern notice. • If an operator resumes the practice that gave rise to the issuance of the original notification of a pattern of violations, a new POV notice can be issued to the operator based on the circumstances that resulted in the original notice, as well as the operator’s most recent conduct.

12. POV Proposed Rule • In 2/11, MSHA issued a proposed rule (comments closed – public hearings ended 6/15/11) to modify POV criteria and application … will likely include many more mines • Current agenda (1/20/12) shows a final rule due 4/2012 • MSHA proposes using “issued” citations/orders rather than “final” C/O • MSHA has not spelled out the full criteria in the rule, stating it would develop via policy later • Criteria may include: 12 mo “lookback” period for issued C/O, # of total S&S C/O, # of elevated actions, and company’s incidence rate • Proposal eliminates PPOV stage and would go direct to POV finding • No due process provided to appeal decision to place mine on POV • Mine operator could “mitigate” by developing SHMP that the DM approves and successfully implementing it.

13. Legislative Solutions • “Byrd Mine Safety Act” -- S. 153 – introduced 1/25/2011 by Sen. Rockefeller and three cosponsors (all democrats); House counterpart is HR 1579 (sponsor is Rep. Miller, has 17 cosponsors) • Republican bill introduced 12/16/11 by Rep. Capito (R-VA) as HR 3697 also has POV provisions • Unlike version approved by House Ed & Labor Committee in 2010, Democratic bill does NOT exempt aggregates industry and other surface and non-gassy underground mines

14. Legislative POV Provisions • Sec. 202 of all the bills provide for establishing a POV where there is a pattern of— • citations for significant and substantial violations; • citations and withdrawal orders (section 104(b)) issued for S&S or unwarrantable failure citations/orders • citations for flagrant violations within the meaning of section 110(b); • Sec. 107(a) imminent danger withdrawal orders; or • other information demonstrating a “serious safety or health management problem at the mine – including accident, injury and illness records” • Different criteria could be established for different types of mines • POV notice would be provided by the Secretary, which must be posted at mine. • If the Secretary certifies there are mitigating circumstances - e.g., operator is in process of reducing elevated risks – can issue a certification of such mitigating factors and must publish it in the Federal Register and transmit it to Congress!

15. Legislative POV Provisions • If POV is appropriate, MSHA would notify the operator of such mine that the mine is being placed in pattern status; • Issue an order requiring such operator to cause all persons to be withdrawn from such mine, except those persons working to remediate the conditions; • Issue a remediation order to such operator; and • Require that the number of regular inspections of such mine required be increased to 8 per year for an underground mine and 4 per year for a surface mine while the mine is in pattern status. • Legislation establishes in the Treasury the Mines in Pattern Status Inspection Fund for deposit of fees collected from mines in pattern (of violation) status for the costs of additional inspections.

16. Remediation Orders • The remediation orders under the proposed bills would require the operator to carry out one or more of the following requirements, following a timetable for commencing and completing such actions or as a condition of miners reentering the mine: • Provide specified training, including training not otherwise required under this Act. • Institute and implement an effective health and safety management program approved by the Secretary, including • the employment of safety professionals, certified persons, and adequate numbers of personnel for the mine, as may be required by the Secretary; • specific inspection, recordkeeping, reporting and other requirements for the mine as the Secretary may establish; and • other requirements to ensure compliance and to protect the health and safety of miners or prevent accidents or injuries as the Secretary may determine are necessary. • Facilitate any effort by the Secretary to communicate directly with miners employed at the mine outside the presence of the mine operators or its agents, for the purpose of obtaining information about mine conditions, health and safety practices, and advising miners of their rights under this Act.

17. Withdrawal Order Contests • If any withdrawal order under POV is contested, the review of such order shall be conducted on an expedited basis, within 10 days, in accordance with section 105(d). • If not contested, any withdrawal order issued under the Act shall not be lifted until the Secretary verifies that— • any and all violations or other conditions in the mine identified in the remediation order have been or are being fully abated or corrected as outlined in the remediation order; and • the operator has completed any other actions under the remediation order that are required for reopening the mine. • Once in POV, the Secretary shall evaluate the performance of each operator whose mine is in pattern status every 90 days during which the mine is producing to see how it stands in relation to comparable mines. If benchmarks not met, withdrawal order is reinstated!

18. Other Provisions • POV will not apply for the first 12 months after a mine is acquired by a purchaser • MSHA must maintain a searchable public database to determine pattern status of all mines, and publish list of all mines in POV status at least quarterly • Capito Bill: Within 180 days of enactment of the legislation, MSHA would have to issue proposed regs to implement these legislative provisions and finalize a rule within 1 year of enactment. • Byrd Bill: Not later than 120 days after enactment, the Secretary must issue interim final regulations that shall define—“(i) the threshold criteria to trigger pattern status under paragraph (1) and cause a withdrawal order to be issued or reissued; and “(ii) the performance benchmarks. A final rule would be due within 2 years of enactment.

19. Conclusion • POV will be used by MSHA – either on its own initiative or through Congressional mandate – increasingly in the future • Proactive implementation of safety and health management systems will lay groundwork for demonstrating “mitigating circumstances” to avoid a POV action, should lead to fewer citations overall and an improved accident rate • Operators must monitor their mine IDs on the MSHA DRS to see how they stand in POV benchmarks on a regular basis and work cooperatively with District Office to see what steps can be taken in advance of a PPOV finding to avoid public identification as the “worst of the worst.”

20. QUESTIONS?Adele L. Abrams, Esq., CMSP 301-595-3520 www.safety-law.com safetylawyer@aol.com