Under the pattern of violations regime, once an initial letter is received, removal from the pattern list occurs only under one of two circumstances. MSHA’s follow-up inspection finds: (1) 30 percent fewer S&S violations/orders issued (per 100 inspection hours during the 24-month baseline period), or (2) a violation frequency rate for S&S at or below the industry average (based on type and classification of mine per 100 inspection hours for the 24-month baseline period).

During the follow-up inspection, MSHA will issue an order withdrawing miners from the affected area for each S&S violation found. The only personnel allowed in the area affected by a new S&S citation will be those miners needed to remediate the alleged violation. Not until after abatement has been verified by MSHA will the withdrawal order be lifted. Only then may work resume in that area.

The mine operator can terminate the pattern of violations notice when an inspection of the entire mine is completed and no S&S violations are found. Another alternative occurs when no withdrawal order is issued by MSHA in accordance with Section 104(e)(1) of the Mine Act within 90 days of the issuance of the pattern notice. The mine operator may request an inspection of the entire mine or portions of the mine. No advanced notice is given by MSHA, and the agency will determine the scope of the inspection. Partial inspections that cover the entire operation within 90 days may qualify as a complete inspection.

For further information, contact Mark Savit via telephone at 303-894-6117 or via e-mail at msavit@pattonboggs.com; Henry Chajet at 202-457-6511 or hchajet@pattonboggs.com; or John Austin at 202-457-6167 or jaustin@pattonboggs.com.

Add ever-increasing penalties to the revived pattern of violations sanction, and the citation contest rate will likely remain at historically high levels.