MSHA Revises Pattern of Violation Criteria

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Here is the good news: “MSHA acknowledges…the majority of mine operators are conscientious about providing a safe and healthful work environment for their miners.” So says the Mine Safety and Health Administration (MSHA) in introducing a new pattern of violations (POV) rule. The bad news: If MSHA decides any mine operator is not “conscientious,” but rather has a discernible pattern of “significant and substantial” (S&S) violations, that mine will immediately be given a pattern of violations notice.

This is MSHA’s nuclear option, you might say, because it will be devastating and potentially permanent. Once a mine is given a POV notice, every S&S citation will result in an order to withdraw miners. This will continue until MSHA completes an inspection of the entire mine in which no S&S violations are found. (Considering that about a quarter of all violations issued are S&S, getting off POV status will be extremely difficult, perhaps impossible.) Some have estimated a cost of $14,000 to $44,000 per hour at large mines. Certainly, having to stop work at each location or item of equipment until a violation is fixed will be costly for a mine of any size.

Legal Test

Anytime an inspector determines that there is a reasonable likelihood that a reasonably serious injury could occur, the violation is S&S. That is the test that courts apply in reviewing an inspector’s determination. The determination is highly subjective and inspectors can consider almost anything other than technical violations to be S&S. Judges may agree or disagree. Legal challenges can be unsatisfying because of time, expense, and resistance of MSHA to consider changes until perhaps very close to trial. However, mine operators who want to ensure fair treatment by MSHA have little choice.

Legal Challenges

S&S violations and civil penalties have been a real concern for the 14,000 mines in the United States. Under prior regulations, MSHA only considered violations that were final for purposes of a POV notice. That made sense, since issuing closure orders based on citations that may later be reduced in contest proceedings is incongruous at best and unconstitutional at worst—one of several grounds on which this regulation may be challenged in the U.S. Court of Appeals.

It is partly because mine operators have contested many violations (59,000 presently) that MSHA has decided to not wait for final determinations. Whatever the inspector says a citation is—it is. And if there are enough adverse inspector findings, POV enforcement will ensue. While there are ways to seek expedited pre-penalty review of a citation, the process would be largely unavailing for multiple S&S violations, particularly if no POV notice has yet been issued.

MSHA argues that it is not unconstitutional to count S&S citations that are not final, and further that Congress ordained that MSHA should decide how to assess pattern. MSHA relies on a provision in the law stating: “The Secretary [of MSHA] shall make such rules as he deems necessary to establish criteria for determining when a [POV] of mandatory health or safety standards exists.”

MSHA says that Congress intended the reliance be on “inspection history” rather than “history of violations.” (The distinction is that MSHA does not count non-final violations for the history part of civil penalty determinations, but will now, for POV determination purposes, count non-final citations as they are issued. The fact that an operator contest may keep the violations from becoming final will not matter to MSHA.) In justification, MSHA cites the fact that after issuing an “unwarrantable failure” citation, MSHA has never waited for it to become final before issuing closure orders founded on the citation.

Another problem––previously, mine operators would be notified that they were approaching POV status. They would be given an opportunity to discuss with MSHA and perhaps begin a remediation program to avoid POV status. MSHA is no longer providing such notice or opportunity. MSHA says operators can find everything they need on the agency’s website to determine whether they are at risk. MSHA says operators can institute safety programs unilaterally and inform the agency. This “mitigating factor” can be taken into account, MSHA says, in determining whether or not to impose POV enforcement.

Pattern Criteria

There are many things that MSHA considers in determining POV status in addition to S&S citations, including orders for unwarrantable failure, imminent danger, abatement failures, and inadequate training. MSHA will also consider accident and injury records and anything else considered pertinent.

If you do not have much of a record, you do not need to worry. If you are experiencing problems, however, you had better keep track of your statistics on MSHA’s website. Also be aware, if you get an “impact inspection” with multiple inspectors, matters can escalate in a very short period of time. That alone could indicate you are in trouble.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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