MSHA Accepting Comments on Changes to Pattern of Violations Rule

On January 31, the Mine Safety and Health Administration (MSHA) proposed a new rule to better protect mine workers from unsafe mines.  The new rule addresses situations when a mine operation shows a pattern of violations.
Under the new rules MSHA will post searchable compliance information on its website, along with its pattern of violations criteria.  This access to information is intended to promote transparency and encourage mine operators to better monitor their own compliance history and discover and address recurring safety issues.
In addition, MSHA will run pattern of violations reports twice per year to indentify mines with recurring safety violations.  Based on these reports, MSHA will determine whether a pattern exists.  Absent a finding of mitigating circumstances, a pattern demonstrated by the report would automatically trigger MSHA enforcement procedures requiring a withdrawal order until the violation is abated.
MSHA stated that it would consider mitigating circumstances in determining whether to institute the pattern of violations process because it recognizes that in some circumstances repeated violations might be beyond the operator’s control.  Examples of such repeat violations include those that result from a change in a mine’s ownership or control.  In such circumstances, MSHA said that it would consider whether the mine is showing a trend of significant improvement.  In addition, MSHA said it would consider proactive measure mine operators are taking to bring the mine into compliance.  In this way, the new process will encourage mine operators to work with the agency to ensure compliance and avoid the full pattern of violations process.
The new rule is a change from the previous rule in a number of ways.  In particular, in the past MSHA could only determine whether a pattern of violations had occurred based on final orders.  Final orders are often not issued until years after the violation occurred because the violations are often the subject of lengthy appeals.  The appeals process has allowed dangerous patterns to continue for years before the proper enforcement procedures could be triggered.
MSHA is accepting comments on the new rule until April 1, 2011.  The new rule and instructions for submitting comments are found here: MSHA POV Proposed Rule