mine safety, pattern of violations, msha
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Pattern of Violations Rule
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On January 23, 2013, MSHA published its Final Rule revising Pattern of Violations (POV) procedures in the Federal Register, with an effective date of March 25, 2013.  The major facets of the final rule are:

1. The rule provides that a mine exceeding the POV criteria for "issued” citations is automatically placed in POV.  The District Manager can meet with the operator after placing a mine on POV, to correct any alleged errors in the operator’s record as to the number or types of violations, but there is no mechanism for a hearing on the propriety of POV status until after a withdrawal order is issued under POV during a subsequent inspection. 

2. Mines are expected to self-monitor, by regularly checking MSHA’s Data Retrieval System to see whether the mine is nearing POV status.  

3. MSHA expects mines meeting some, but not all, of the criteria for POV to "proactively” contact MSHA and get the District’s approval for a "corrective action plan” which, if implemented in a way that reduces significant and substantial (S&S) citations, will be a "mitigating factor” in considering POV status.  MSHA provides a document on its website called "Guidelines for Corrective Action Plans” as guidance for what is required, but it is very general and approval is left to the District Manager’s discretion.    

4. The rule bases status on the number of citations, orders and elevated actions issued during the previous 12 month period, as well as the operator’s injury and illness rates.  Normally, MSHA will evaluate mines one time per year, but if MSHA has concerns about a particular mine, it may be reevaluated at any time. 

5. If an operator is placed under POV, any S&S citation serves as a withdrawal order (from the area of the mine or piece of equipment) until the alleged violation is abated.  MSHA will do a complete inspection of the mine within 90 days; only if the inspection results in no S&S citations is the POV status terminated.   
 
This regulatory summary is provided by IMA-NA Associate Member: Adele Abrams, Esq., CMSP, Law Office of Adele L. Abrams.

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