In the mining industry MSHA enforcement of “pattern of violations” sanctions can be devastating to a mine operator’s business. Every operator is potentially subject to a “pattern of violations” notice from the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA). Mine records are reviewed by MSHA every year to determine if there is a pattern of violations that could “significantly and substantially contribute to the cause and effect of a mine safety or health hazard.” This terminology from the Federal Mine Safety and Health Act of 1977 is liberally construed to include any violation that an MSHA inspector concludes is “reasonably likely” to cause a reasonably serious injury—even a sprain in some cases.

MSHA also evaluates other criteria, including accidents, injuries, and illnesses––all in the mine record—to determine whether a pattern exists. (Each occurrence must be promptly reported to MSHA on required forms.)

Effects of Pattern Designation

Mines are inspected so often and so intensely that “significant and substantial” violations are virtually inevitable. Ordinarily, a citation is issued for a so-called “S&S” violation, and then the operator is given a reasonable time to correct it. For a mine already on pattern notice, no time is given. Rather, MSHA issues an order requiring that all miners be immediately withdrawn from the area until the violation is corrected.

This pattern effect will disrupt or completely halt production, maintenance, or development each time such an order is issued. Worse yet, there may be no way for a mine to escape the pattern designation. Thus, this disruption could continue for the life of the mine. Note that a mine may overcome the pattern designation in two ways.

  • Receive no S&S citations for 90 days––essentially a probation period at the outset.
  • Undergo a complete inspection of the entire mine with no S&S violations being found.

Given that MSHA regularly issues citations for S&S violations even for “housekeeping” violations, this may never be possible.

What is Considered? Who Keeps Track?

For most of MSHA’s history, S&S violations contested by an operator could not be counted toward a pattern determination until adjudicated to be valid. More recently, MSHA issued new regulations that changed this procedure drastically. (The regulations are being challenged by industry in the Sixth Circuit Court of Appeals.) Regardless of whether S&S violations are contested by an operator, MSHA now counts every violation issued.

MSHA formerly maintained a policy of giving companies “advance notice of a possible pattern,” based on MSHA’s review of the mine’s history of violations, orders, accidents, injuries, and illnesses. Operators then had had an opportunity to try to work their way out of the problem. Under MSHA’s new regulations, however, MSHA will not give companies advance notice of pattern. Rather, MSHA says mine operators must monitor their own records on MSHA’s website and compare data with MSHA’s posted criteria for pattern enforcement.

Necessary Information and Response

Under a self-reporting system, if a mine finds, that it is approaching a pattern, management can develop a corrective action plan, work with MSHA to implement it, and try to avoid a worsening situation and pattern status. To properly track progress, though, the operator needs complete information. Most of the information required to evaluate a mine’s status, using forms provided by MSHA—but not everything—has been available on MSHA’s website.

One key to pattern status evaluation is a calculation of the rate of S&S violations in relation to inspection hours. Until now, mine operators have not had access to the record of hours logged by inspectors, and, as a result, calculation of the rate of S&S violations in relation to inspection hours has been constrained by absence of this information.

Recently, MSHA updated its website with a new tool for operators––the “S&S Rate Calculator.” According to MSHA, this tool “enables mine operators that implement a corrective action program to determine if their mine is successfully reducing its significant and substantial, or S&S violations.”

Putting aside what operators can find out about potential pattern status, and what they might do about it, many issues remain, not least of which is the validity or invalidity of the regulations presently being enforced.

Browse More Insights

Businessmen walking and talking in empty warehouse
Practice Group

Workplace Safety and Health

The Occupational Safety and Health (OSH) practice of Ogletree Deakins is characterized by the knowledge and credibility of our attorneys, and the exceptional level of service that we provide to our clients.

Learn more

Sign up to receive emails about new developments and upcoming programs.

Sign Up Now