By Mark Savit and Erik Dullea

MSHA’s Pattern of Violation (POV) program (under Section 104(e) of the Mine Act) is going through yet another round of revisions as a result of enforcement difficulty associated with the 2007 program. Original POV screening parameters were based primarily on a 24-month look back period, but new parameters will be based on a 12-month look back period. Under the new program, MSHA will use a two-step process to determine whether a mine has a potential pattern of violations (PPOV).

Step 1—Under the initial PPOV screening criteria, violations at mines are grouped into two categories. A mine triggers the screening criteria if all Category I criteria are met:
1.    At least 50 S&S citations/orders issued in the most recent 12 months;
2.    Eight or more S&S citations/orders issued per 100 inspection hours during the most recent 12 months or negligence classifications of either “high” or “reckless disregard” for at least 25% of the S&S citations/orders issued within the past 12 months;
3.    At least 0.5 elevated citations and orders under Secs. 104(b), 104(d), 104(g), or 107(a) of the Mine Act per 100 inspection hours issued during the most recent 12 months; and
4.    An injury severity measure greater than the overall industry severity rate for mines of that type and classification over the most recent 12 months.
A mine can also trigger the screening criteria if both of the criteria in Category II are met:   
1.    At least 100 S&S citations/orders issued in the most recent 12 months; and
2.    At least 40 elevated citations/orders under Secs. 104(b), 104(d), 104(g), or 107(a) of the Mine Act issued during the most recent 12 months.
Mines meeting the criteria Category I or Category II are subject to pattern screening criteria to determine whether a PPOV exists.
Step 2—The second step in the PPOV analysis looks at the most recent 12 months to determine whether the Federal Mine Safety and Health Review Commission has issued final orders at the mine for at least:
1.    Five S&S citations/orders of the same standard; or
2.     Two S&S unwarrantable failure violations.   

PPOV Determination and Responses
Once MSHA has made its PPOV determination, district managers are required to provide MSHA with any extraordinary mitigation conditions which might justify MSHA postponing or deciding not to issue a PPOV notification. If MSHA issues a PPOV notice, a mine will receive written notification from the respective district manager. This notification shall explain the basis for the determination, and will require the mine to do the following within 20 days of the date of notification:
1.     Review all documents upon which the pattern of violations evaluation is based and provide additional information;
2.     Submit a written request for a conference with the District Manager; and/or
3.    Submit a corrective action program to be implemented at the mine to avoid repeated S&S violations.

A mine is not required to submit a corrective action program. If a PPOV mine decides not to submit a corrective action program to MSHA, that mine will undergo a complete inspection within 50 days of receipt of the PPOV notice. During that inspection, to avoid an actual POV notice, the mine must achieve a 70% reduction in its S&S frequency rate per 100 inspection hours compared to the mine’s rate during the 12-month review period.
Conversely, if a PPOV mine does submit a corrective action program, the mine will have a maximum of 110 days from the receipt of the PPOV notification to implement the corrective action program and achieve a reduction in its S&S frequency rate. The district manager has the ability to give a mine operator that submits a corrective action program an additional 90 days to determine whether the program is effectively reducing S&S violations. If the corrective action program is implemented to avoid a POV notice, the mine must reduce its S&S frequency rate per 100 inspection hours by 50% as compared to its initial 12-month review period.

Without knowing the details of what MSHA will consider an appropriate program, or to what extent MSHA’s benchmarks will resemble or surpass the stated S&S violation reduction rates, there is a risk that a mine’s development of a corrective action program will simply be a waste of resources because MSHA can dictate the terms of the program. There is also a risk that in future inspections, the provisions of the program will be used against the mine as evidence of knowledge and/or willful disregard of MSHA standards.  

On November 3, 2010, MSHA announced it was seeking a court injunction to close Freedom Energy Mining Co.’s Mine No. 1 in Kentucky due to what MSHA believes is a pattern of violations. According to MSHA representatives, this is the first time MSHA has ever sought an injunction for the shutdown of a mine under Sec. 108(a)(2) of the Mine Act (which differs from the pattern of violation provision under Sec. 104(e) discussed above). This provision of the Act permits MSHA to seek an injunction or take other legal action whenever MSHA believes the operator “is engaged in a pattern of violation…which constitutes a continuing hazard to the health and safety of miners.” If the U.S. District Court grants MSHA’s motion, the operator will be ordered to close the mine temporarily, among other requirements. According to an MSHA representative, the Secretary of Labor has a number of other mines under consideration for similar civil actions for injunctive relief.
In 2008, when MSHA decided to make greater use of the POV program, Patton Boggs predicted MSHA’s decision would lead to an increased contest rate and further exacerbate an overburdened system. Under the new PPOV program, it is likely that S&S violations will continue to be hotly contested because of their role in PPOV and POV determinations. In view of the changes to the PPOV program and MSHA’s latest attempt to file for injunctive relief, operators and their counsel should carefully weigh their approach to PPOV avoidance.

Mark Savit is a partner with Patton Boggs LLP and can be reached at 303-894-6117 or Erik Dullea is an associate with Patton Boggs LLP and can be reached at 303-894-6118 or