The proposal, which was announced Monday afternoon and will be published in the Federal Register Wednesday, would change existing regulations under 30 Code of Federal Regulations Part 104.
Among the major provisions of the proposed regulation are general criteria that the agency could use to identify operations with a pattern of violations, including compliance, accident, illness and injury records.
Specific POV criteria and compliance details would be available in a searchable database on the MSHA web site, allowing operators to monitor their own performance records against POV criteria and subsequently take proactive measures to eliminate hazards and bring mines back into federal compliance.
The new proposal eliminates the potential POV procedure as it is known now, which involves a written notification that a potential POV exists at a mine.
“No longer would mine operators receive advanced warning,” the agency said.
“Instead, screening under the proposed rule would be for mine operators that meet criteria for a pattern of violations, and the proposal would increase the frequency of MSHA’s review of a mine for a POV from once to at least twice a year.
“MSHA believes that the ready availability of compliance data on the agency’s web site will eliminate the need to inform operators of a potential POV.”
As a mitigating circumstance for determining POV operators, the agency would be able to consider – for its approval – a written safety and health management program aimed at finding and fixing problems and reducing significant and substantial violations, as well as improving safety and health conditions.
The proposal also eliminates existing requirements that only citations and orders which have become final orders can be used for a POV review. Current outlines provide an incentive for operators to contest citations, MSHA said, even years after occurrence.
Finally, for POV operators, every S&S violation would result in a withdrawal order until the issue has been abated, and mines would remain in POV until a complete inspection resulting in no S&S violations is completed.
MSHA initially announced new screening criteria for the POV program last September.
“As I’ve said many times before, the current POV system is broken, and this regulation is the next critical step in reforming the enforcement program under the existing statute,” assistant secretary of labor for mine safety and health Joseph Main said.
“It would require mine operators to be much more proactive in monitoring their compliance performance and would eliminate two provisions in the existing regulation: the potential POV procedure and the requirement regarding final orders.
“Congress enacted this law 33 years ago, and not one mine has ever been placed on a POV – this proposed rule is designed to meet Congress’ intent.”
The largest US industry union, the United Mine Workers of America, spoke out in support of the proposal Monday, calling the changes a step forward for the industry.
“We look forward to working with MSHA to see how we can help in the development of the final rule so that it will be most effectively applied," UMWA president Cecil Roberts said.
"We have long wanted changes in the POV rules so that needless tragedies like the Upper Big Branch disaster of last April do not happen again. We believe that this rule will help us get there."
