By Linda Otaigbe

This has been an interesting year for the Mine Safety and Health Administration’s (MSHA) Pattern of Violations (POV) rule. The authority for creating the POV rule originates from the Mine Act, which authorizes the secretary of labor to “make such rules as he deems necessary to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists.” In 2013, MSHA revised its POV rule from the original version promulgated in 1990. Among other changes from the old rule, MSHA eliminated the procedure of providing advance warning to mine operators regarding their status as potential pattern violators and providing an opportunity for these operators to institute corrective action plans. Under the current rule, mine operators do not receive an advance warning and have to keep track of their status on MSHA’s Data Retrieval System, which can be found on the MSHA website. The revised rule also allows MSHA to consider citations that are merely issued as significant and substantial (S&S) by an inspector in its determination that there has been a POV, rather than relying on final citations where a settlement has been reached or citations that were adjudicated to final order.

Following the November 2013 Coal Age article entitled “How to Stay Off the MSHA POV List,” there have been several new developments with regards to the POV rule. In 2013, Brody Mining LLC, operator of the Brody Mine No. 1, was one of the first mining companies issued a POV notice under MSHA’s revised POV rule. MSHA cited Brody for 54 alleged S&S violations written over a one-year period, all of which Brody contested. In addition to contesting the citations with the Federal Mine Safety and Health Review Commission, Brody also challenged the POV regulations, while a group of other mining companies and mining associations challenged it in front of the Sixth Circuit Court of Appeals. On January 30, the chief administrative law judge of the commission upheld the facial validity of the POV regulations. A few months later, on August 19, a three-judge panel of the Sixth Circuit Court of Appeals ruled that it did not have subject-matter jurisdiction to hear a challenge to the POV rule since it is not a mandatory health and safety standard.

That decision, however, is subject to a rehearing petition before the full circuit and may be followed by an independent lawsuit in a United States District Court. Later that month, on August 28, the commission affirmed the judge’s ruling upholding the facial validity of the POV rule.

THE NEW ALJ DECISION
After the commission’s decision affirming the facial validity of the POV rule, it remanded the case for further proceedings to the Commission’s Office of Administrative Law Judges. The issue before Administrative Law Judge William Moran was whether a POV by Brody had been established. Critical to this determination was an evaluation of the validity of the citations/orders issued against Brody that constituted MSHA’s alleged pattern of violations. Prior to the hearing, Judge Moran had directed MSHA to explain what creates the Brody pattern, but MSHA had refused and put forth the position that it would decide what constituted a pattern only after he made his determinations regarding which of the citations and orders were valid.

After a three-week hearing, Moran dismissed the pattern charge against Brody on November 3. He found the secretary of labor had not adequately explained what constituted the alleged Brody pattern prior to the hearing, which was a violation of due process. Moran explained that the secretary of labor had simply pointed to a general definition of “pattern” in Black’s Law Dictionary and had asserted that as few as two citations may constitute a pattern. He wrote, “the secretary has provided only the broadest possible hint of what constitutes a pattern of violations.”

In addition to disagreeing with MSHA’s approach, he analogized it to an unfair board game or card game where the rules are announced only after the game has been played, with one party announcing the basis for winning. He found that this approach did not give mine operators the ability to effectively defend themselves against a pattern determination, would cause inconsistent results since it would be a case-by-case determination, and would result in a delay in the expeditious resolution of pattern matters. Although he dismissed the POV charge, he proceeded to rule on the citations and orders and vacated some while modifying others, in addition to approving the parties’ settlement on 12 other citations by removing the S&S designation. These changes left the amount of S&S violations issued against Brody substantially below the S&S violation-screening threshold for considering it for POV status in the first instance.

POTENTIAL IMPACT
Moran’s decision illustrates that it will be difficult for MSHA to enforce its POV notices without a proper explanation, in advance, of what the pattern consists of. The legal landscape regarding this rule will continue to evolve through 2015 and will likely bring additional changes as the battle between industry and MSHA over the POV rule continues.


Linda Otaigbe is an associate in the Washington, D.C., region office of Jackson Lewis P.C. and a member of the firm’s Workplace Safety and Health Group. She focuses her practice on all aspects of workplace safety and health law, and represents clients on a wide range of administrative, regulatory and public policy issues. She can be reached at linda.otaigbe@jacksonlewis.com.