Outten & Golden: Empowering Employees in the Workplace

No Pattern To Be Found

June 10th, 2010 | Ravi Bakhru

Ravi BakhruDepartment of Labor news releases rarely get the attention they so rightly deserve. But I’m a fan of giving credit where credit is due, so when Assistant Secretary Joseph Main issued this statement, I perked up.

After an investigation by Federal officials, a mine operated by Massey (think Upper Big Branch explosion) was cited for 29 violations in its Tiller No. 1 Mine. The violations ranged from hazardous roof conditions to inadequate ventilation to, wait for it….

Non-permissible electrical equipment with the potential to explode methane gas.

Section 104(d)(1) of the Federal Mine Safety and Health Act describes a significant and substantial violation as being “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” A violation of this provision essentially means there is a reasonable likelihood that the hazard will result in serious injury or illness. The problem is not just the standard, but in the requisite number of violations that meet the standard to establish a pattern.

Judge David Barbour, who issued an oral ruling (written decision to come) on the matter, found that although he believed all 29 violations had occurred, only 19 of the violations amounted to significant and substantial, 6 less than the 25 needed to establish a pattern. Don’t bother asking if that’s a typo, 25 “significant and substantial” violations are necessary in order to establish a pattern. Establishing a pattern means that any significant and substantial violation found within 90 days thereafter automatically triggers a withdrawal order until the mine has a clean inspection with no S&S violations. In short, establishing a pattern would immensely help those who work in such unsafe conditions by forcing mine operators to clean up or face losing money every day.

“No mine has ever been successfully placed into pattern of violations status.” This is perhaps the most profound statement made with regards to the matter. In 2006, the American public endured the Sago Mine explosion and watched as a single miner emerged with his life. And in April of this year the Upper Big Branch mine exploded, killing 29 coal miners.

Mining is undoubtedly one of the most dangerous jobs in the world, and we continually disrespect those who risk their lives for our energy by refusing to recognize and fix a broken system of oversight. Employees of these mines should be disgusted, if they aren’t too busy being frightened. The Federal Mine and Health Safety Act is designed to provide regulations and oversight into one of the most hazardous industries known to man. It was not designed to protect the companies who owned the mines, but the average worker who spent a full 8-10 hours in a black hole.

A message needs to be sent to the mine industry: we will no longer tolerate such blatant disregard for workers. We may not be able to bring mining from one of the most dangerous jobs in the world to the safest job in the world, but surely we can help those facing such conditions. And we can do that by easing the restrictions on establishing patterns of violations. Doing so would allow regulators to shut mines down when they see violations deemed S&S, and force mine operators to think about safety more than once every explosion.

About The Author: Ravi Bakhru is a third year law student at George Washington University. He currently works as an intern for Workplace Fairness, and has an interest in pursuing employee rights law in the future. To get in touch with Ravi, you can email him at [email protected]

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3 Responses to “No Pattern To Be Found”

  1. Tracy A Kunstmann Says:

    I sent a letter to the Obama administration pointing out the number of deaths, the time period and briefly comparing that situation to other industries where corporations have been heavily fine for lesser “losses”. I hope it’s ok that I excerpted you article. I found your article informative and startling. Thank you for your good work!!!

  2. Charles J. Read Says:


    Instead of mining where a few deaths occur from time to time. Why don’t you concentrate your effort on something where tens of thousands or millions die ever year first.

    Free back up the production of DDT that was wrongly blamed for various ills and save a million children from malaria every year.

    Work on GenModified foods that could feed the worlds hungry on less land and less water and eliminate stravation and hunger.

    Make the roads in this country safe and save over 40,000 lives a year and hundreds of thousands of injuries and billions of dollars of property damage.


  3. Today’s Workplace » Mine Safety Legislation Is A Start Says:

    […] patterns of mine safety violations. You can read his full statement here and my article on it here.  The outline includes a section that would place mine operators in pattern status if it has a […]

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