New life has been breathed into the enforcement beast better known as the pattern of violations.

by Mark Savit, Henry Chajet, and John Austin

The pattern of violations sanction, authorized by law in 1978, has been a little used, but very powerful enforcement tool contained in the Mine Act. Now, 30 years later, that monster has been brought to life. The Sago Crandall Canyon Mine tragedy provided the perfect storm. Lightning struck when the Mine Safety and Health Administration (MSHA) issued the first-ever “pattern” of violations notice Nov. 20, 2008, to Patriot Mining LLC, Wise County, Va. Although 43 mine operators received letters indicating a potential pattern of violations since June 2007; Patriot is the first mine put on notice because it did not sufficiently improve its violation record.

Patton Boggs has developed a unique process to ward off pattern enforcement by combining a management briefing, a data analysis process, and a systematic site training, rule enforcement, and citation tracking system. To date, this proactive system has successfully enabled mines using it to improve compliance records and prevent final stage pattern enforcement.

MSHA alleged that Patriot “failed to reduce the rate of significant and substantial violations” after receiving an earlier notice of a potential pattern. Once on a pattern, the mine receives withdrawal orders for every significant and substantial (S&S) violation until the mine undergoes an entire inspection without any S&S violations; a difficult goal given the thousands of S&S violations issued by MSHA per year for items such as failures to clean accumulations of spilled materials. Essentially, a pattern finding almost guarantees endless closure orders, resulting in production disruptions that are far more costly than even the new “flagrant” fine of up to $220,000.

Like Occupational Safety and Health Administration (OSHA) cases with more than $100,000 in penalties: mines can expect a negative press release when singled out for a pattern notice. In addressing Patriot’s pattern notice, Richard E. Stickler, acting assistant secretary of labor for mine safety and health, spoke harshly: “This operator had a pattern of exposing miners to potentially life-threatening injuries and illnesses in violation of the law and was given every opportunity to turn around its safety record but failed to do so.” Stickler continued, “Hopefully, this stronger enforcement action will induce the operator to implement the necessary improvements at its operation to prevent potentially serious or fatal harm to miners.”

Mines became qualified for the pattern list based on a screening model and scoring criteria for 2008. Mines with the following criteria were further scrutinized for pattern potential:

• At least 10 S&S citations/orders at mines classified as Surface and Facility, issued during the 24-month review period and at least 10 final orders;
• At least 20 S&S citations/orders at mines classified as Underground, issued during the 24-month review period and at least 20 final orders;
• At least two “elevated enforcement” actions such as 104(b), 104(d), or 107(a) “issued” within 24 months and two elevated enforcement “final orders”;
• The ratio of citations/orders issued in the most recent 12 months to the number issued during the previous 12 months is 70 percent or greater;
• S&S citations/orders per 100 inspection hours for the past 24 months is equal to or greater than 125 percent of the national rate for that mine type and classification;
• The number of S&S citations/orders issued per 100 hours during the last two quarters or number of elevated enforcement citations/orders is greater than the industry average for the mine type and classification; and
• At least one S&S 104(d) issued violation that became a final order during the past 24-month review period.

Further screening then determines whether a company receives a “pattern” notice.

MSHA may be unhappy with the current citation contest rate, but this “pattern” action will just increase the number of challenges. Add ever-increasing penalties to the revived pattern of violations sanction, and the contest rate will likely remain at historically high levels. If companies cannot extricate themselves from the pattern list quickly, they may regret that they did not take a more aggressive role in contesting citations. It behooves all mine managers to review safety programs and citation statistics. Safety citations that can be controlled, including final orders and their timing, must now be managed.

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 ^[1]; Henry Chajet at 202-457-6511 or hchajet@pattonboggs.com ^[2]; or John Austin at 202-457-6167 or jaustin@pattonboggs.com ^[3].

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