In May of 2007, the head of the Mine Safety and Health Administration, Richard Stickler, promised a Congressional Committee that his agency would finally utilize the pattern of violations authority contained in Section 104(e) of the Federal Mine Safety and Health Act of 1977. Responding to a year and a half’s worth of intense criticism of the agency’s performance against a backdrop of multiple underground coal mine tragedies, the agency apparently viewed the potential issuance of the first pattern notice in the 30-year history of the Mine Act as the ideal means of demonstrating its commitment to tough enforcement in the industry. Since that time, over two dozen mining operations have been identified as having a potential pattern of violations. Although, to date, these companies have avoided the actual issuance of a pattern notice, it would appear to be just a matter of time before it happens.
The Pattern of Violations Weapon
In a statute full of tough enforcement provisions, Section 104(e) has always been viewed as the toughest. It was designed to give MSHA a weapon that would allow it to essentially control a mine operation when it identifies a “history of recurrent S&S [significant and substantial] violations…that demonstrate a mine operator’s disregard for the health and safety of miners.” 30 C.F.R. § 104.1. The means of control is the issuance of withdrawal orders every time an S&S citation is issued at the operation. An S&S violation is a condition or practice which has a reasonable liklihood of causing a serious injury. In the current enforcement environment, where it is not unusual for large mines and cement plants to receive over 30 or 40 S&S citations in a single inspection, it is not difficult to see how such withdrawal orders could easily result in the closure of the entire operation.
The operator’s fear of having such an onerous enforcement regimen constantly threatening the viablilty of a mine is compounded by the recognition that such a sanction is very likely a permanent condition for the mine. Once a pattern notice is issued, and an S&S violation is found within 90 days, the only way to have it lifted is to undergo a full wall to wall inspection without any S&S citations being issued. In a two or three week inspection at an underground coal mine or cement plant, this is a virtual impossibility.
With that stated, the best defense for operators is not to fall into the pattern net in the first place. It is crucial, therefore, to have an understanding of the pattern process, the criteria by which MSHA identifies potential pattern targets, and the hoops that those potential targets are required to jump through.
MSHA’s Pattern Criteria
In unveiling the pattern authority in the Mine Act, Congress did not provide much guidance regarding what constituted a pattern of violations. That job was left to MSHA, which subsequently (in 1990) promulgated the pattern of violations regulation at 30 C.F.R. Part 104. That regulation requires that the agency conduct an annual pattern screening of all mines. That screening focuses on the compliance records of the operation (including the mine’s S&S history, failure to abate orders, and imminent danger orders) over a sample 24-month period. In addition to these factors, the agency is also required to consider other enforcement measures taken at the operation, evidence of a mine operator’s lack of good faith in correcting S&S hazards, the mine’s accident and injury record, and any mitigating circumstances). 30 C.F.R. § 104.2.
While this screening procedure indicates what criteria should be reviewed, it does not provide any guidance with respect to what weight to give to each element. Does five S&S housekeeping violations over a 24-month period constitute a pattern? Does the analysis change if the history is five roof control violations instead? Shortly after Assistant Secretary Stickler made his pattern vow to Congress, MSHA attempted to shed light on this issue. In conjunction with the June 2007 notification to eight mining operations that a potential pattern of violation had been identified, the agency posted on its website the formula by which it would calculate the existence of a pattern.
Under this formula, operations are first evaluated to determine if they meet all of the following criteria:
n At least 10 S&S Cit/Ord at Surface Mine (20/UG);
n At least 2 “elevated enforcement” actions;
n S&S Ratio between two 12 mo. periods > 70%;
n S&S Rate per 100 inspection hrs > 125% Industry;
n S&S or Elev. Cit/Ord for 100 insp. hrs > Industry;
n Minimum of 2 elevated final orders of Rev. Comm.;
n At least 1 S&S 104d final order of the Rev. Comm.; and
n At least 10 S&S final orders (20 UG).
If all of these criteria are met, then the operation is assigned a raw weighted score that considers the average number of final S&S and elevated enforcement orders (per 100 inspection hours and per 24 months) and increases the score for injury rates, injury severity rates and citation rates which exceed that industry average. When all is said and done, if the operation’s final score is greater than the industry’s score, MSHA notifies the operator that it has identified a potential pattern and that a probationary period has begun, during which the operation has certain options.
Company Response
The letter from the MSHA District Manager notifying an operation that a potential pattern has been identified essentially encapsulates the procedure set out in the regulations. It informs the operator regarding the findings (and provides the data that was calculated), sets out the options for the company, and notifies the company that there is a 120-day deadline (60 days if certain steps are not taken), by which time, if certain goals are not met, a recommendation will be made to the Administrator at MSHA headquarters that a pattern notice should be issued. In effect, MSHA gives the operator 120 days to implement a corrective program which can include new procedures, heightened compliance efforts, increased resources and enhanced oversight in order to reduce the S&S experience at the operation.
In most of the cases that have occurred since June 2007, MSHA has required that the mines either (1) reduce their S&S and elevated enforcement violation history below the national average; or (2) reduce their S&S violation history per 100 inspection hours by 30 percent. When confronted with the choice of challenging MSHA’s pattern effort or implementing a corrective action program, operators have unanimously chosen the latter option every time. Far from being a sign of weakness, this is a recognition of the uncertainty inherent in a process that has never been taken to its conclusion and the substantial disruption which could occur if a pattern notice is ultimately issued. To date, the corrective action plans implemented by the identified mines have proved effective and a pattern notice has not yet been issued..
The Numbers Don’t Lie?
As this enforcement effort by MSHA moves forward, a more confrontational approach from industry is likely. For instance, as set out earlier, the pattern regulation requires that MSHA consider mitigating circumstances in its pattern review. It does not appear at this stage, that the agency has determined how or whether issues like ongoing labor disputes, multiple inspector inspections (which produce dramatic spikes in an operation’s violation history), operational difficulties, the devotion of resources and manpower to safety, the lack of any correlation between repeat violations and incident history (i.e. multiple housekeeping violations versus no slip, trip or fall injury history) should impact MSHA’s conclusion that an operator has disregarded the safety of its personnel.
This uncertainty has reduced the process to a mathematical undertaking with little consideration for whether the operator identified by MSHA’s formula is the type of operator targeted by Congress in Section 104(e). The only thing that is certain is that operators need to constantly review their violation history so that they are in a position to identify the statistical trends and spikes that can produce a blip on MSHA’s pattern radar.
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