The pattern of violations game

An order from William Moran, a Federal Mine Safety and Health Review Commission judge, dismissing MSHA’s pattern of violations (POV) charges against Brody Mining contains some rather interesting language.

“Imagine, if you will, a contest of any sort,” Moran writes. “It could be a board game or a card game or, as in this instance, a contest to determine if a pattern of violations exists. One would expect that, before beginning such a contest, the rules would be announced in advance. But 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.”

By law, if an operator is deemed to have a pattern of violations, MSHA must issue written notice that such a pattern exists. Thereafter, every significant and substantial (S&S) violation will result in an order of withdrawal closing the affected part of the mine until the condition is corrected. The only way to stop highly disruptive orders is to undergo a complete inspection without a single S&S citation. As every mine operator knows, that is a highly tenuous prospect.

In the Brody Mining case, Moran had 54 citations before him that MSHA relied on to declare a pattern. The case had more than 100 contested orders because Brody Mining contested every subsequent order issued based on the pattern designation. There is more that goes into a pattern designation than just S&S charges. The judge held that MSHA must declare at the outset what it says constituted a pattern, what was considered and how criteria were applied.

The judge noted that POV regulations indicate that MSHA will review a mine’s compliance history and accident and injury records. The regulations say the following are considered: S&S citations; orders of withdrawal for failure to abate S&S violations; unwarrantable failure charges; imminent danger orders; orders for training deficiencies; previous enforcement actions; other information that demonstrates a serious safety or health management problem at the mine, such as injury and illness records; and mitigating circumstances.

Prior to trial, Brody Mining moved to compel MSHA to identify everything MSHA relied on to find a pattern and specifically what constituted a pattern; what number of S&S citations Brody Mining had to prevail on to defeat the pattern designation; and how the grouping of citations in the pattern notice constituted a pattern. The judge agreed all these questions had to be answered before trial.

MSHA’s response was not satisfactory to the judge. In dismissing the pattern designation, the judge said MSHA’s “process is inconsistent with procedural due process” and inconsistent with expeditious resolution of pattern matters. The judge also clearly expected MSHA to prove “that other enforcement mechanisms under the Mine Act have been insufficient to deal with the mine’s safety and health issues.”

MSHA took the position that it had ample evidence to put before the court, and it was for the judge to decide if there was a pattern based on all the evidence. The judge rejected MSHA’s “approach of essentially putting it in the lap of the Commission [judge] to determine, on a case-by-case basis and over a period of years, the grounds for a pattern.”

The judge accepted Brody Mining’s argument that “[t]he issue here is not some evaluation of a single citation or order, but an evaluation of how a group of citations fits together in the context of the Act’s enforcement scheme and in recognition of the purpose [of the pattern provisions] to serve as an enforcement tool when other tools have failed.” A decision of the U.S. Court of Appeals for the Sixth Circuit was cited for the proposition that “an administrative agency must give clear statement of the theory on which a case will be tried.”

Brody noted that operators know what they need to prove in other cases under the act, but that was not so with the Brody Mining pattern designation. The judge found MSHA did not establish for Brody Mining or the court what needed to be proved at trial for the pattern designation to be sustained. Concluding his dismissal of MSHA’s POV claim against Brody, the judge stated this: “The court is aware that legitimate pressure was placed upon the secretary (MSHA) to arise from its slumber and utilize the pattern provision after its virtual quietude of some 35 years. However, this can be viewed from another perspective, too.

“Given that it took MSHA and the secretary 12 years following the enactment of the Federal Mine Safety & Health Act of 1977 to develop its first effort to produce a regulation addressing a pattern of significant and substantial violations and another 22 years to produce an iteration of a pattern of violations, now 35 years in all, it can hardly be argued that there is now a rush to implement this important provision apart from fairness to those charged with such violations,” the judge continued. “In this court’s estimation it is more important that the process be fair, and consistent with the principles of procedural due process.”