A judge will likely have to reconsider a notice of pattern of violations allegation brought by the federal mine safety regulator against Pocahontas Coal Co.
A notice of pattern of violations could prove serious if the Mine Safety and Health Administration finds a significant and substantial violation at the mine within 90 days of the notice, because the agency would issue a withdrawal order shutting down the mine.
The Dodd-Frank Act requires mining companies to include information about mine safety and health, such as notices of a pattern of violations or the potential to have a pattern of violations under the Mine Act, in quarterly and annual reports they file with the Securities and Exchange Commission.
Although they weren’t in complete agreement, three members of the Federal Mine Safety and Health Review Commission said in a July 13 meeting that an administrative law judge incorrectly ruled the Department of Labor proved a pattern violations existed at Pocahontas’ Affinity mine in West Virginia. They would vacate the judge’s grant of summary decision ( Pocahontas Coal Co. v. Sec’y of Labor, FMSHRC, No. WEVA 2014-395-R, meeting 7/13/17 ).
MSHA adopted its new pattern of violation rule in January 2013 and two screening criteria in March. The agency conducted a computerized screening of 14,600 mines under its jurisdiction from September 2012 through August 2013 and concluded the mine met one of criteria because, among other things, at least 50 citations were designated significant and substantial—and a quarter of these were the result of high negligence or reckless disregard.
A pattern of violation panel of senior MSHA employees determined a corrective action plan submitted by the company was insufficient as mitigation, and recommended a notice be issued. Attorneys and inspectors identified two patterns of violations—24 S&S violations contributing to roof and rib hazards and 16 S&S violations contributing to emergency preparedness and escape way hazards during the preceding year. Two of these were later modified to non-S&S.
MSHA issued the notice to Pocahontas in October 2013.
Administrative Law Judge Margaret A. Miller found that the procedures were adequate and the department proved a pattern of violations.
Commissioner Robert Cohen said MSHA did not abuse its discretion in issuing the notice, but that he was inclined to remand so the department can prepare a case with qualitative components, aligning with review commission precedent.
Under 30 C.F.R. 104.2(a), other information that demonstrates a serious safety or health management problem at the mine and mitigating circumstances are among factors MSHA reviews in deciding whether a mine has a pattern.
“Maybe a certain number of citations by itself is enough as a matter of law, but I’m not sure we want to approach it this way,” he said. “The secretary needs quantitative and qualitative factors. Section 104(e) is nuclear for the industry.”
Commissioner Michael Young said the decision to issue the notice was left to agency discretion, but he would vacate and remand for a hearing to have the matter fully adjudicated.
He also said Miller committed prejudicial and reversible error by discussing 11 accidents at the mine in her opinion, when the secretary had not made a case linking their nature and relationship to the establishment of a pattern.
Chairman Robert Althen said the eight criteria needed to be considered and the secretary bore the burden of presenting evidence. He also said that he will consider granting Pocahontas’ motion for summary decision.
Commissioner Mary Lu Jordan said she would affirm based on the number of citations, which “sustain, support the pattern.”
The U.S. District Court for the Southern District of Ohio stayed in May a facial industry challenge to the pattern of violations rule to allow mine operators, mining groups, and the agency to negotiate a settlement. Those discussions are ongoing.
The final rule (78 Fed. Reg. 5056), which is the subject of Pocahontas’ as applied challenge, eliminates the potential pattern of violations notice, which MSHA has used under the 1990 rule to commence the process that could ultimately lead to a notice.
Unlike the previous rule, the new rule also allows MSHA to consider S&S citations that are not final orders for purposes of issuing a notice of pattern of violations. MSHA had issued two-thirds of Pocahontas’ S&S citations while the old the rule was in effect, but they were considered in MSHA’s pattern of violations analysis under the new rule.
Among other things, the plaintiffs in the rule challenge claim that MSHA and the secretary of labor violated the Administrative Procedure Act by failing to consider economic implications and the rate at which significant and substantial violations are overturned.
They also allege that the screening criteria amount to a legislative rule, and therefore require notice and comment rulemaking—a position Althen echoed in his discussion.
Dinsmore & Shohl, LLP, Washington and Charleston, W. Va., represents Pocahontas.
The Department of Labor, Office of the Solicitor, represents the secretary.
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