Aggregates Manager

January 2014

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Rock MSHA's first enforcement measures for POV leave more unanswered question. by R. Henry Moore and Jessica M. Juraksko Unchecked ENFORCEMENT T R. Henry Moore is a member in Jackson Kelly PLLC and is the manager of the firm's Pittsburgh office, where he practices with the Occupational Safety and Health Practice Group. He can be reached at 412-434-8055 or via email at Jessica M. Jurasko is a member in Jackson Kelly PLLC's Pittsburgh office, where she practices with the Occupational Safety and Health Practice Group. She can be reached at 412-434-8812 or via email at 30 he "far-reaching implications" predicted by the National Mining Association (NMA) when the final Pattern of Violations (POV) Rule was announced in January 2013 are now a reality. A few days shy of only seven months after the new POV Rule (30 C.F.R. Part 104) took effect, MSHA enforced it for the first time and placed four mine operators on its POV list in October and November 2013. MSHA has completely changed its course in terms of what an operator can expect once it is issued a POV notice. The criteria once thought to be the framework for what constitutes a pattern are, according to MSHA, not considered at all once the notice is in effect. The agency has completely abandoned the criteria that were relied on in its determination to issue a POV notice. MSHA is exercising unchecked enforcement authority to put a mine on a POV while offering no meaningful preventive guidance other than to limit the number of "significant and substantial" (S&S) citations that are issued. Thus far, there has been a great deal of discussion surrounding what an operator can do to avoid being placed on the POV list, but what are an operator's options once this actually happens? Though many mine operators are aware of what they believe the provision to involve, it truly is unclear as to what MSHA's exact in- terpretation is regarding several critical issues. First, MSHA's position on the criteria and how the agency intends to use such criteria to enforce the new rule and establish a pattern have been in flux. Second, what it takes to come off of POV is not as straightforward as the regulations suggest. Finally, the avenues for an operator to seek redress in the court system are paved with many roadblocks while MSHA points to ineffective and inapplicable methods to challenge a POV notice. The authority for MSHA to issue a POV notice originates in the Mine Act itself. Congress granted the Secretary of Labor authority "to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists." Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. ยง 814(e)(4). The key terms in that directive are the words "criteria" and "pattern," without which, there is no real way for a mine operator to know what puts it on a "pattern" as defined by MSHA. However, as will be discussed, MSHA has opted to exercise a great deal of discretion in its interpretation and enforcement of the new rule. In particular, how it construes the definitions of "criteria" and "pattern" is, according to the agency, within its sole discretion to establish. The pre-2013 rule noted that only S&S AGGREGATES MANAGER January 2014 RockLaw_AGRM0114.indd 30 12/17/13 2:40 PM

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