The pattern of violations game, continued

By |  December 7, 2015

msha-logoThe most serious civil sanction under the Federal Mine Safety and Health Act converts regular citations into repeated orders to withdraw miners – potentially for the life of the mine.

This happens if MSHA declares a pattern of violations (POV). This sanction is so disruptive MSHA did not impose it for 30 years, but MSHA is now enforcing it.

Brody Mining was placed under a POV and hit with closure orders for every violation allegedly “of such a nature as could have significantly contributed to the cause and effect of coal or other mine health or safety hazards.” Virtually every operator receives such significant and substantial (S&S) violations, but pattern declarations are not common.

S&S citations alone are not enough. There has to be a pattern for POV status. But what is a pattern, and how can a company defend?

Brody contested 54 S&S citations relied on by MSHA to show a pattern. Prior to trial, the number of S&S violations dropped from 54 to 40. (MSHA vacated two and dropped 12 to non-S&S.) Judge William Moran pointedly and repeatedly directed MSHA to inform Brody and the court what MSHA contended was a pattern at the Brody mine.

Pattern criteria

Seemingly under MSHA’s pattern criteria, the significance of the following would need to be addressed.

  1. There were no failure-to-abate orders
  2. There were no imminent danger orders
  3. There were no training violations.
  4. One violation was low negligence
  5. The bulk of the violations (35) were designated “moderate negligence”
  6. The remaining four were charged as “high negligence” (unwarrantable failure)

In addition, MSHA would need to explain:

  1. What “other enforcement measures” were used before declaring a pattern?
  2. How were they ineffective and, therefore, necessitated elevation to pattern enforcement?
  3. What demonstrated a “serious safety or health management problem” at Brody?
  4. Did MSHA investigate or recognize any “mitigating circumstances?”
  5. What, if any, other factors did MSHA consider in contending there was a pattern?
  6. Also, MSHA relied on 54 violations for the pattern. How did reduction to 40 affect this?

Pre-trial POV dismissal

Because MSHA would not say prior to trial exactly what constituted a pattern in Brody’s case, the judge dismissed the pattern notice and reduced all orders issued pursuant to pattern declaration to regular citations.

In his dismissal order, the judge used an analogy of a card or board game to stress the need for rules at the outset. (See “The pattern of violations game,” Pit & Quarry, Dec. 2014.) The judge said: “What if the rules were announced only after the game had been played? For most people … such a contest would seem patently unfair, almost rigged.”

Directly to the point, he said: “By [MSHA] not setting forth the basis for its claim … Brody was put at a great disadvantage. … Not being forearmed knowing the secretary’s pattern of violations, facing the unknown Brody could not know how to defend itself. It could not … anticipate or ask questions during the hearing if it has not been informed of the basis for the alleged pattern charge.”

The judge founded his position on fundamentals of the U.S. Constitution.

“[O]n procedural due process grounds, it was an obligation on [MSHA’s] part to identify the road map explaining the basis for [the] claim that the mine has shown a pattern of violations,” the judge said.

The judge would have his own interest in knowing MSHA’s position prior to trial. Following trial, it would be his job to decide whether the evidence established a pattern in Brody’s case.

Commission reversal

MSHA appealed the dismissal. In September 2015, the Federal Mine Safety and Health Review Commission reversed, deciding pre-trial vacation of the POV notice was premature and inconsistent with congressional interests in enforcing miner safety. The majority opinion of Commissioners Michael Young, Robert Cohen and Patrick Nakamura is hard to reconcile.

“We agree with the judge that [MSHA] is ordinarily required to disclose his theory of how the groupings in a POV notice constitute one or more patterns of violations prior to a hearing on the pattern,” the commissioners said. “Before the commission, [MSHA] requested that the proceedings be bifurcated so as not to disclose his theory of how the individual S&S violations comprised a pattern until after the judge ruled on which citations were S&S. As an exercise of his discretion, the judge properly rejected this request. Given the judge’s ruling … Brody was entitled to the secretary’s theory of how the groupings amounted to patterns prior to the hearing … to be able to defend against pattern charges.”

Chairman Mary Lu Jordan concurred with the majority. However, she opined disclosure of MSHA’s pattern theory was unnecessary for prosecution of a case.

In dissenting, Commissioner William Althen characterized the majority opinion as “inexplicable.” He said MSHA’s failure to disclose the basis of the pattern prior to trial was prejudicial and a failure of due process.

“[T]he majority finds dismissal ‘too harsh’ a remedy,” Jordan says. “Thus, the majority treats [MSHA] as a schoolchild failing to complete his homework rather than a cabinet officer failing to accord the operator due process.”

What next?

Commissioner Althen concluded that MSHA must provide “a sufficient theory of relationships” among S&S violations before trial so the operator knows what it is defending against and can present appropriate rebuttal evidence.” A U.S. Court of Appeals could well conclude the same. In the meantime, the case has been remanded for further proceedings before Judge Moran.

Take note

Because MSHA would not say prior to trial exactly what constituted a pattern in Brody Mining’s case, the judge dismissed the pattern notice and reduced all orders issued pursuant to pattern declaration to regular citations.

Allison Kral

About the Author:

Allison Kral is the former senior digital media manager for North Coast Media (NCM). She completed her undergraduate degree at Ohio University where she received a Bachelor of Science in magazine journalism from the E.W. Scripps School of Journalism. She works across a number of digital platforms, which include creating e-newsletters, writing articles and posting across social media sites. She also creates content for NCM's Portable Plants magazine, GPS World magazine and Geospatial Solutions. Her understanding of the ever-changing digital media world allows her to quickly grasp what a target audience desires and create content that is appealing and relevant for any client across any platform.

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