MSHA Issues POV Notice Despite Ongoing Court Challenge

By Ross Watzman

The Rule, Which Took Effect in March, Allows MSHA to Issue a Notice Without First Issuing a Potential POV Notice.

The Mine Safety and Health Administration (MSHA) has used its authority to impose a severe sanction on a mine operator in West Virginia despite an ongoing review of the rule at issue –MSHA’s Pattern of Violation (POV) Rule – in the United States Court of Appeals for the Sixth Circuit. The POV Rule, which took effect in March, allows MSHA to issue a POV notice without first issuing a Potential POV (PPOV) notice and review (thus eliminating the 90-day improvement period) and eliminates the requirement that MSHA must consider final orders in its POV review.

In this case, MSHA’s justification for issuing the POV notice, which was followed by Section 104(e) withdrawal orders, was based on prior, non-final citations and orders, including those issued to a predecessor operator/owner of the mine, without considering the mitigating factor of new ownership and management changes.

Since the acquisition, there was evidence of measurable progress toward improved safety and compliance. The mine had cooperated with MSHA to address the agency’s concerns and even submitted a Compliance Improvement Plan to MSHA, which MSHA approved about one month before placing the mine on a Pattern.

On October 11, 2013, the National Mining Association, National Stone, Sand & Gravel Association, and Portland Cement Association (collectively, “Petitioners”) challenged the March 2013 POV Rule in the United States Court of Appeals for the Sixth Circuit. Among other things, their challenge asserts that promulgation of the POV Rule exceeded the Secretary’s authority under Section 104 of the Mine Act, is the result of arbitrary and capricious rulemaking, and will deny mine operators due process of law.

Given the pendency of the court review of the POV Rule, it is surprising that MSHA acted as it did, rather than waiting a few months for the court to conclude its review. Indeed, after the West Virginia mine was placed on a Pattern and issued closure orders, NMA sought an agency stay of the rule, and then was joined by the other Petitioners in filing a Petition for Emergency Stay with the Court.

The “Motion for Emergency Stay” argued that if the POV notices imposed on the West Virginia mine and other operators remain in effect, they will cause immediate, irreparable, and continuing harm without countervailing benefit to third parties or to the public interest. Petitioners specifically asserted that unless the court grants a stay, mine operators on POV face ongoing, non-recoverable closure costs and the likely closure of mines.

The Stay Motion also argued that MSHA’s prior Pattern Rule enhanced safety and compliance, as demonstrated by the industry record under that rule. The petitioners pointed to MSHA admissions on the massive compliance improvements experienced under the prior rule, after mines had received a notice of potential pattern – which was eliminated by the new rule. Additionally, the Stay Motion claimed that eliminating the potential pattern notice provision violated the Mine Act provision that prohibits MSHA from decreasing safety.

At this point it is difficult to know how the Sixth Circuit will rule. What is known is that each and every closure order issued as a result of the POV notice causes further harm to the operators.

We are hopeful the Petitioners will prevail in their challenge to the Rule, preventing a situation where operators could face repeated closure orders and risk the complete loss of their mine without a meaningful right to contest citations before they are counted against them to identify a Pattern.

Moving forward, at least until there is a court decision on these issues, operators need to be more attentive than ever to the underlying merits of every significant and substantial (S&S) citation, and cautious in acquiring ongoing operations, as it appears that now, contrary to long-established MSHA practice, a prior operator’s history may be used against a new owner. 

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