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POV Violates Due Process, ALJ Rules; Denies Motion for Emergency Stay


ALJ William Moran dismissed a Pattern of Violations charge against Patriot Coal’s Brody Mining on Nov. 1, stating that the POV charge is a violation of due process. The Judge called the POV process “patently unfair, almost rigged,” and said that companies do not know what evidence to present for their defense.

The Nov. 1 decision precludes MSHA from issuing any further withdrawal orders to the Brody Mine under Sect. 104(e) of the Mine Act, which covers Pattern of Violations. Judge Moran also denied the Secretary’s “emergency motion” to stay the decision on Nov. 26.

The case and decision, involved 103 orders that were contest proceedings, and nine dockets that were part of a civil penalty proceeding stemming from violations at the company’s Black Stallion Mine in West Virginia – the site of a recent double-fatality. The final outcome of this decision, however, would affect the 12 coal and metal/nonmetal mines that currently meet POV criteria as determined by MSHA's current formula (available on MSHA’s Data Retrieval System), and the mines that have already been placed on POV status.

Of the current cases in this docket, 54 citations and orders were specifically related to the issue of whether or not Brody met POV criteria, depending on the outcome of the judge’s decision.

Brody challenged MSHA’s POV regulations soon after it was notified of POV status. Chief ALJ Robert Lesnick upheld the regulations, and Lesnick’s decision was affirmed in an interlocutory ruling by the Commission on Aug. 28, 2014.

There is a Difference

Judge Moran said the difference between the case before the Commission, and what was before him in this decision was “comparable to the indictment phase and a trial phase, with the Commission having concluded that the pattern regulation passed facial validity but that at the trial phase it was now time for the Secretary to establish that a pattern of violations existed.”

The questions that had been before the Commission were (1) whether the POV rule is valid; (2) whether MSHA' s screening criteria are invalid because notice-and-comment rulemaking was required; and (3) whether MSHA impermissibly applied the POV rule retroactively to this particular mine.

To determine whether a pattern existed, Judge Moran said MSHA would need to identify the basis for its claim that the 54 citations/orders formed a pattern of violations, establish that those citations and orders were in fact violations, and that each one was S&S. The problem, Moran said, is that the Secretary failed “to identify what constitutes a pattern, even after the pattern notice was issued and the litigation challenging that notice instituted, the Secretary still did not identify, beyond general and vague statements, the basis for his pattern claim.”

Judge Moran compared the case to a board game or card game in which “the rules were announced only after the game had been played, after the hand had been played, and that one party announced the basis for the winning hand.”

The Secretary was unable to identify the basis for a POV claim before the hearing commenced, and the judge clearly did not agree with waiting until after the trial for the Secretary to announce the basis for his POV claim, based on the outcome of which citations and orders had the S&S findings upheld by the judge.

Simply put, “the Secretary failed to set forth the basis for his charge,” Judge Moran said, noting in a footnote that the Secretary admitted that the determination of a pattern could not be made until the Review Commission ALJ determined which citations were properly designated S&S and upon such determinations, it would then be up to the Commission ALJ to determine whether those constituted a pattern.

The judge said, “the government made a fatal flaw in proceeding without informing Brody of the basis for its pattern charge and that such an approach is fundamentally unfair on due process grounds. This failure was compounded by not only failing to announce its basis prehearing but also by asserting that, even post-hearing, it would not express the grounds. Instead the Secretary asserted that it would wait until after the Court ruled on which violations were proven and were S&S.”

While Judge Moran noted the importance of a POV rule, he said it is “important that the process be fair, and consistent with the principles of procedural due process.”

Denial of Emergency Motion

After Judge Moran’s decision, the Secretary then filed an “Emergency Motion to Stay,” asserting four reasons while the Secretary believed he would prevail.

According to the Secretary: “(a) the Court did not have jurisdiction to dismiss the POV “charges;” (b) even if the Court did have jurisdiction, its due process analysis is erroneous; (c) the Mine Act does not require the Secretary to define “pattern of violations;” and (d) the Secretary provided both: (i) a definition of “pattern of violations,” and (ii) fair notice to Brody of the basis for his POV determination.”

Judge Moran noted that Brody has appealed the Commission’s initial ruling to the U.S. Court of Appeals for the D.C. Circuit, and the company has appealed the validity of the POV charges. Until this latest motion, the Secretary had acknowledged that a POV notice could be challenged.

In expressing frustration with the Secretary in a footnote, Judge Moran said the Secretary had not complied with his instructions to identify the basis for the claim of a pattern of violation. For instance, the Secretary failed to explain how many violations may constitute a pattern, and instead “simply grouped some violations dealing with escapeways, roof control and ventilation, and left it at that.”

Fair Notice

The Secretary also claimed that Brody had “fair notice of what it had to do to comply with the law: comply with the mandatory health and safety standards...” and that the “next S&S violation would trigger a withdrawal order.”

Judge Moran rejected this “fair notice” argument.

“This analysis by the Secretary conflates the obligation to comply with mandatory safety and health standards, with a pattern of violations claim, as if they are the same thing. They are not. Further, the analysis suggests that a POV notice, by itself, establishes a POV.... The Secretary’s position cannot withstand scrutiny, and his stance highlights the concern expressed by the Court in its Order dismissing the POV charges, as it exposes the Secretary’s apparent belief that it need only issue a pattern of violation notice to prove a pattern, all without ever having to state how the violations constitute a pattern,” the judge wrote.

The Secretary’s next claim, that the Mine Act does not require MSHA to define a “pattern of violations,” but only requires the Secretary 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,” was also rejected.

“Though the rules for establishing such criteria may be optional, in the context of litigation, the obligation to state the basis for the pattern in the POV notice in a given case is not optional,” Moran said. While the Secretary also argues that a “mode of behavior or series of acts that are recognizably consistent” is a pattern, the judge reiterated his concerns in his denial order with the Secretary claiming that a pattern can also consist of two violations.

In terms of necessary enforcement tools available to the Secretary, Judge Moran noted enforcement options under 104(a) and 104(d) citations and orders, and said, “it is not as if a pattern of violations notice is its only enforcement tool ... the Mine Act provides a variety of enforcement tools, all of which have been in use since the 1977 Act... the Secretary’s claim of irreparable harm and the claim that a stay is in the public interest are not meritorious.”

Also troubling to the ALJ was a claim by the Secretary in the POV rule, that expedited hearings would be available. Judge Moran noted this case “demonstrates that the mine operator’s challenge to the POV Notice will be anything but expeditious.”

Brody Mining LLC, FMSHRC)(J) Nos. WEVA 2014-82-R et al. (Nov. 1, 2014, order dismissing pattern charges, see: 21 MSHN D-2927; Nov. 26, 2014, order denying Secretary’s emergency motion to stay, Nov. 26, 2014, see: 21 MSHN D-3037).