Pattern-of-violation rule change gets under way

Posted on behalf of Stewart Bell, PLLC on Feb 07, 2011 in Coal Mining Accidents

It shouldn't take a tragic coal mine accident to motivate lawmakers to scrutinize U.S. Mine Safety and Health Administration regulations. But when you consider the history of the pattern-of-violations (POV) program, for example, you see that it sometimes takes a disaster to toughen up the rules. Congress created the POV program in 1977, following the 1976 Scotia Mine disaster. This year, in the wake of West Virginia's Upper Big Branch catastrophe, MSHA has proposed changes to the POV enforcement process.

The POV program currently authorizes MSHA to move a mine with a history of serious safety problems into a higher enforcement bracket. In that bracket, MSHA can close down a part of the mine when an additional serious citation is issued. The POV designation remains in effect until the mine goes one complete quarterly inspection without a serious violation.

In 1990, though, the rule was revised, creating a loophole for mining companies. The rule allowed citations under appeal to be taken out of the POV equation. So, by appealing every citation, a company could engage in a pattern of violations but avoid the POV designation all the while.

The rules changes under consideration would close that loophole. They would also put an end to the warning letters that give companies a "second chance" to improve their practices. And, the rules would require more frequent reviews of mine safety records, giving regulators more chances to identify violators.

The objective is to move to a state of constant monitoring. The main tool, though, is far from implementation, or even design. MSHA has talked about a database that will track enforcement actions used to determine POVs. The rule, however, neither mandates nor describes the database, a major cause of concern for mining operators. Even advocates of the tougher POV program say that there are still details to work out in the implementation of the proposals.

Since the program came online in 1977, MSHA has not given one mine the POV designation.

Source: The Charleston (WV) Gazette, "MSHA proposes to beef up 'pattern-of-violations' rules," 01/31/11

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