The Mine Safety and Health Administration (MSHA) has authority under the Mine Act to issue a notice to mine operators who show a disregard for workers’ safety and health through an alleged “pattern” of serious violations; in other words, those classified as significant and substantial (S&S). A pattern of violations (POV) notice is the agency’s toughest enforcement action. Roughly one-third of all violations are classified as S&S by inspectors, and any such violation at a POV-listed mine can be highly disruptive because it requires withdrawal of miners until the infraction is corrected. Once listed as a POV mine, the operator has a difficult time getting delisted, since the operation first must pass a mine-wide inspection free of any alleged S&S violations.

In the face of a federal lawsuit by the mining industry challenging MSHA’s POV rule that, when applied, results in repeated closure orders or forced, agency-approved compliance plans, MSHA is calling its rule “a law that now works.” In a welcomed development, MSHA concluded that not a single operation satisfied its new POV criteria in its last review round, leading Assistant Secretary of Labor Joseph Main to declare the POV reforms “real game-changers.”

However, MSHA did not credit the administrative law judge who boldly called the rule a “rigged” card game, refused to uphold its application, and left MSHA with a need to re-examine how it will apply its questionable enforcement scheme, under further contest in at least two federal courts. The latest POV screening was the third since the 2013 rule revisions. Twelve mines were identified in the POV screening last year, and nine in 2013. Currently, 13 active compliance assistance plans (CAPs) are in place in coal and metal and nonmetal mines, helping mines prevent POV application by adopting mandatory MSHA provisions. CAPs are an issue in the lawsuits because MSHA never submitted the new mandatory CAP requirements for notice and comment rulemaking,

The most significant change in the new POV rule allows MSHA to consider the number of alleged S&S violations issued by an inspector. Under previous iterations, only violations that had become final orders of the Federal Mine Safety and Health Review Commission were considered. About 30% of all S&S allegations made by inspectors are dismissed after operators legally contest them.

The industry lawsuit, filed in U.S. District Court for the Southern District of Ohio, asserts that the revised POV rule denies mine operators due process under the Fifth Amendment through its use of alleged violations instead of final orders. In addition, the industry asserts the rule fails to adhere to statutory requirements for notice and comment rulemaking because MSHA has never disclosed the criteria it applies to determine POV eligibility.

The POV changes also violate the Mine Act by abandoning the former POV rule, which MSHA admitted improved safety, in favor of a rule whose impact cannot be predicted. In response to the industry complaint, MSHA asked the court to throw out the litigation on jurisdictional grounds. The industry litigants, represented by Jackson Lewis, are the coal associations of Ohio and Kentucky, the National Mining Association, the National Stone, Sand and Gravel Association, and the Portland Cement Association.

“The POV reforms sent a message that chronic violator behavior would no longer be tolerated,” Main said. “That message translated into a dramatic reduction in the number of mines with chronic violation records.” MSHA encourages a mine operator in S&S trouble (check the agency’s POV webpage) to submit a CAP. If approved by MSHA and effectively implemented to cut the number of S&S violations, the agency considers it a mitigating circumstance that may justify postponing or not issuing a POV notice.

Currently, 13 active CAPs are in place in coal and metal and nonmetal mines. CAPs are an issue in the industry lawsuit because the litigants assert MSHA never submitted the mandatory CAP requirements for notice and comment rulemaking. Based on our experience in negotiating CAPs with MSHA, mine operators should plan to do so well before MSHA screening, to maximize their probability of preventing a POV designation, at least until the courts act further to send the rule back to MSHA to cure its many flaws.

Henry Chajet is a shareholder in the Washington, D.C., region office of Jackson Lewis P.C. He counsels and represents clients in environmental, health and safety (EH&S) matters, and antitrust matters, focusing on crisis management, dispute resolution, trial and appellate litigation, standard setting, liability prevention, regulatory and congressional proceedings, and direct purchaser overcharge recoveries for corporate clients in antitrust price manipulation cases.