The Mine Safety and Health Administration (MSHA) released a new final rule for the Pattern of Violations (POV) status designation which will go into effect March 25, 2013. The POV designation, which has been around since the Mine Act of 1977, has not received much attention from regulators until the last few years — no mine had been placed on POV status until 2011 — but will now be an enforcement focus and mine operators should be aware of the potential impact of the new rule.
The new rule establishes criteria and procedures MSHA will use to identify mines with a pattern of violations. However, MSHA will no longer be required to provide notice of a potential POV designation and may instead directly issue a notice of POV. Under the new rule, MSHA will be allowed to consider pending orders during a POV review and will no longer be limited to only final orders. Once designated as a POV mine, the mine will have to complete a mine-wide inspection, without a finding of a single S&S (significant & substantial) violation, before it will be removed from POV status.
While we anticipate that the new rule will be challenged by companies that are placed in the POV program, we are currently advising clients subject to MSHA's jurisdiction on how to monitor their own compliance against POV criteria using the new online monitoring tools in order to stay out of the POV program in the first place. Because the consequences of being placed in the POV program can be severe, companies will need to seriously consider contesting any citation that they believe was improperly issued. We are also helping clients develop strategies to reduce the number of citations that could be counted against them under the POV program.
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