Coal Age

OCT 2015

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On September 29, the Federal Mine Safety and Health Review Commission issued its latest deci- sion in a pattern of violations (POV) saga of cases, Secretary of Labor v. Brody Mining LLC. Not sur- prisingly, the commission has now made it far easier for the Mine Safety and Health Administration (MSHA) to establish a pattern of violations under Section 103(e) of the Federal Mine Safety and Health Review Act. The commission's most recent decision will likely be appealed, and other litigation challenging the validity of MSHA's pattern rule is already pending in federal court. In the meantime, MSHA will likely be emboldened by the commis- sion's latest decision. To date, the only real surprise in the Brody litigation has been the considered and quite remarkable opinion of Judge Moran. Moran's task at trial was to determine whether MSHA had established a POV by the operator, which citations/orders MSHA relied on to support its pattern allegations were established as violations, and which of those also qualified as significant & substantial (S&S) violations. The hearing lasted three weeks and by the end, only 28 of the original 54 S&S cita- tions and orders remained S&S. Describing MSHA's position as "antithetical to due process," Moran dismissed MSHA's POV claims against the operator. Moran used clear, strong language to rebuke the approach MSHA took and the claims it made. He was surely correct, but his decision was head- ed for review by the commission — a commission that viewed the case through an entirely different lens. The commission determined Moran was wrong to dismiss the pattern order. Prior to trial, MSHA had refused to promulgate a regulatory definition of the phrase "pattern of violations." At tri- al, MSHA refused to "identify the basis" for its claim that the mine operator qualified as a pattern violator, even after Moran directed MSHA to explain itself. Moran recognized that MSHA's refusal to explain the basis for its allegation that the operator had engaged in a POV made it very difficult for the operator to mount a defense against that allegation. The commission's decision evinced much less concern for due process. It held that Moran acted prematurely in dismissing the pat- tern order and requiring MSHA to explain the basis for its pattern allegation. MSHA had offered generic lists of possible factors that could support a pattern finding, and the commission seized on these lists as "helpful interpretive tools." The commission claimed Moran improperly required MSHA to identify a minimum number of cita- tions to qualify for a pattern, and it held that MSHA could establish a pattern with as few as two citations or orders. The commission suggested that if Moran had not dismissed the pattern order at the beginning of the hearing, the parties could have developed and argued their theories during the course of the hear- ing. Likewise, the commission found that the operator could not show it was prejudiced by MSHA's refusal to explain the basis for its claim, because MSHA would have to show how it would have litigat- ed its case differently with that definition in hand. Most importantly, the commission decided to define the phrase "pattern of violations." It held that a pattern of violations "is estab- lished by an inspection history of recurrent S&S violations of a nature and relationship to each other such that the violations demonstrate a mine operator's disregard for the health or safety of miners." It remanded the case, instructing Moran to apply this new definition. Only one of the five members of the commission, Commissioner Althen, dissented. While Commissioner Althen agreed with the commission about how to handle future cases, he felt that the new process only underscored the extent to which the operator was prej- udiced by MSHA's refusal to explain itself prior to trial. He said the commission treated MSHA like a "school child failing to complete his homework rather than as a cabinet officer failing to accord the operator due process protections in seeking the most severe sanc- tion available." Commissioner Althen made three other important points. First, he noted the context in which pattern notices are issued. Specifically, he recognized the fact that MSHA issues a significant number of S&S citations to almost every operator each year. In light of that fact, he questioned whether the pattern process could discern between S&S citations and orders that actually show a pattern reflecting a disregard for safety and those that do not. Second, he pointed out the arbitrary nature of MSHA's pattern process by asking the obvious question. Specifically, if MSHA "could not explain the relationship among the alleged violations that led to [the pattern notice] until after a hearing, how did MSHA make the [pattern] determination in the first place?" Finally, he found it ironic that the "dilemma" of when MSHA must disclose its theory of a pattern in a case is the result of MSHA's decision to "base POV determinations on unproven allegations." Allowing MSHA to wait until after a hearing to explain the basis of a pattern notice "allows the secretary to refuse to explain the basis of the decision until after he arrives at the place where he could have begun — a set of proven violations." Commissioner Althen's reasoning was strong, but he could not attract any of the other four members to join him. The com- mission's decision will likely face an appeal. The industry has also filed suit in federal district court that challenges MSHA's statuto- ry authority to promulgate the pattern of violations rule, argues that MSHA's rule was promulgated in an arbitrary and capricious manner and maintains that MSHA's rule violates mine operators' due process rights. As all of this litigation plays out, the commis- sion's decision in Brody will surely make it easier for MSHA to establish a pattern, and it is safe to assume that it will embolden MSHA. R. Brian Hendrix is a shareholder in the Washington, D.C., region office of Jackson Lewis P.C. He advises clients on matters involving environmental, health, and safety law, focusing on litigation, inci- dent investigations, enforcement defense and regulatory compli- ance counseling. l e g a l l y s p e a k i n g MSHA Takes Round Three in POV Fight 48 www.coalage.com October 2015 B Y R . B R I A N H E N D R I X

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