Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/233439
ROCKLAW citations and orders that were "final" would be considered among the criteria for POV purposes. Also, MSHA notified operators when a potential POV (PPOV) status existed at the mine, thereby allowing any discrepancies or errors in MSHA's records to be corrected. These "pre-notice" steps have been eliminated under the new rule. As a result, when a mine gets issued a POV notice, it is initially left guessing as to what alleged violations occurred to warrant its POV status. As stated in the rule, MSHA is to post the specific pattern criteria on its website. 30 C.F.R. § 104.2(a). Without the issuance of PPOV under the current rule, mine operators are expected to screen themselves. The onus is on the mine operator to self-track. The operator must routinely review the POV criteria on MSHA's monitoring tool website via its single source page to determine if the pattern criteria are met. (See www.msha.gov/POV/POVsinglesource.asp.) Once a mine is placed on POV status, according to MSHA, the screening criteria are no longer at issue. The operator cannot escape the pattern notice by simply attacking some of the criteria. MSHA contends that a new, undefined interpretation is considered by the agency to establish a pattern at that point. MSHA has taken the position that a pattern is more than an isolated violation, but not necessarily a prescribed number of S&S citations or orders. Thus, a mine operator is without any empirical data at this stage to challenge what MSHA used to issue its POV notice. Again, the agency's discretion plays a major role in determining the outcome. To be taken off the POV list is an even more precarious task. The rule provides that termination of the notice can occur if, after an inspection of the entire mine, MSHA finds no S&S violations or if no withdrawal orders under § 104(e) are issued within 90 days after issuance of the POV notice. There is little to no objectivity involved in such a determination. The expectations are unrealistic and quite frankly, improbable. The termination of the notice is completely within MSHA's discretion with no true measure for the mine operator to follow. Seeking redress in the court system once a mine is placed on POV status is costly, time consuming, and an obvious strain on an operator's resources. Essentially, if a mine is placed on POV status, it will be forced to litigate the S&S citations and orders eventually selected by MSHA to determine if modifications to the citations/orders by an administrative law judge (ALJ) to non-S&S are sufficient to be taken off POV status. The best-case scenario for an operator would be if this were to occur at an expedited hearing, hopefully with an expeditious ruling by the ALJ. The subsequent § 104(e) withdrawal orders are also a consideration in this process. Presumably, they can be issued on a consistent basis after the POV notice is in effect, creating more alleged violations to challenge. To the extent the mine operator chooses to contest any of the § 104(e) orders, those can hopefully be consolidated and litigated along with the POV litigation as well. Unfortunately, a mine operator is left with few options once the POV notice is issued other than to challenge the notice and litigate the S&S citations giving rise to it. It is important for a mine operator to act swiftly and file the necessary contests with the Federal Mine Safety & Health Review Commission (FMSHRC) to request that MSHA be required to provide it with all of its evaluating criteria in a timely fashion. What the ALJs and FMSHRC will do with such challenges remains to be seen. Nevertheless, a mine should be prepared to provide as much data and evidence to its legal counsel as quickly as possible to thoroughly and adequately defend itself in these circumstances. AM VUE YOUR RESULTS THE LATEST IN LOADER SCALES NEW WEIGHLOG VUE • Easy to Use 7'' Color Touchscreen Wheel Loader Scale and Reverse Camera. • See your accumulated loads, target loads, customer name, material and more. • Save Load Data to SD Card & USB Memory. • Full Featured Scale for any Operation. JOIN US AT CONEXPO BOOTH # 64109 www.loupelectronics.com or call (877) 489-5687 Text INFO to 205-289-3782 or visit www.aggman.com/info AGGREGATES MANAGER January 2014 RockLaw_AGRM0114.indd 31 31 12/17/13 2:40 PM