According to a recent court opinion, last month MSHA reached a settlement with a mining company that included removing the company from the list of operators with a “pattern of violations” (POV). While a 3-1 majority of the Federal Mine Safety and Health Review Commission agreed to dismiss the case, one commissioner dissented strongly.
Based on its POV resource page, MSHA appears not to have issued a press release or otherwise announced the removal of Pocahontas Coal Company from the POV list. When MSHA and Pocahontas jointly asked to dismiss their pending litigation in order to implement their settlement, the motion to dismiss was originally filed under seal.
MSHA and Pocahontas had been litigating withdrawal orders issued to the mine based on its POV status. Once on POV, any time an operator receives an “S&S” (“significant and substantial”) violation, it becomes a withdrawal order to remove miners from the affected area. Other mines that have entered POV have had difficulty getting out (some exited only when they went bankrupt). Normally, a mine can only exit POV if it undergoes an inspection of the entire mine without receiving a single S&S violation. For a large mine, it is not unusual to receive several S&S citations during an inspection.
In this case, however, Pocahontas and MSHA apparently negotiated an end to POV. Just before the expiration of his term on the Commission, Commissioner Robert F. Cohen, Jr. wrote a lengthy dissent taking issue with his approach. He suggested that the papers had been filed under seal in order to evade public attention, and he said that MSHA’s reconsideration of the mine’s POV status was “illicit” since he did not believe that the mine had passed an entire inspection without any S&S violations.