Likening MSHA’s litigation position on its pattern of violations (POV) allegation against a West Virginia coal operator to “an unfair card game” where “the rules were announced only after the game had been played,” a judge has dismissed the agency’s pattern claim on due process grounds.

Equally significant, Administrative Law Judge William Moran also vacated two alleged violations classified as significant and substantial (S&S) and changed to non- S&S nine other alleged S&S citations and orders. MSHA had in part relied upon these to characterize Brody Mining, LLC’s No. 1 Mine as a pattern violator.  Moran’s action, coupled with the parties’ agreement to settle 12 other S&S enforcement actions by removing the S&S designation, left Brody’s final S&S count substantially below the S&S violation screening threshold for considering it for the POV enforcement sanction in the first place.

A POV designation represents a serious enforcement action. Each time an alleged violation is issued, miners working in the portion of the mine affected by it must be withdrawn until the alleged associated hazard is abated.  The POV designation remains until the mine passes a full inspection without S&S violations, a difficult achievement in an underground coal mine.

MSHA cited Brody in the fall of 2013 as a pattern violator based in part on 54 alleged S&S violations written over a one-year period and grouped as follows: 20 for alleged emergency preparedness and escapeway hazards; 18 for ventilation and methane; nine for roof and/or rib; and seven for inadequate mine examinations.  The operator contested all of them.

The Brody operation was one of four mines labelled as a pattern violator under a revised POV rule that had gone into effect seven months earlier.  Among the changes, the new rule eliminated a procedure whereby MSHA provided advance warning to a mine that it was a potential pattern violator. Additionally, for the first time, the rule allowed the agency to consider issued enforcement actions, as opposed to those that had  been settled or otherwise adjudicated, as final orders.

Besides contesting the individual enforcement actions, Brody also initiated litigation challenging those provisions in the new rule.  However, a judge affirmed the changes as facially valid and, on interlocutory review, the Federal Mine Safety and Health Commission, in a 4-1 vote in August, upheld the judge’s decision. The Commission then remanded the case for further proceedings.

Judge Moran’s job was to determine if a pattern had been established. Integral to that determination, he  had to decide which citations/orders, of the 54 constituting the basis for the pattern notice, were actual violations and, among those, which were also S&S.

Prior to the hearing, Moran directed MSHA to state its basis for determining that the violations created a pattern.  However, the agency refused, saying the grounds for determining a pattern could be made only after Moran had determined if the violations were S&S. That led Moran to dismiss the pattern designation and invoke his card-game analogy to show that MSHA’s position violated Brody’s due process rights.

“On procedural due process grounds, it was an obligation on the Secretary’s part to identify, in advance of the hearing, the road map explaining the basis for his claim that the mine has shown a pattern of violations,” Moran said in his November 3 decision.  He stated that without this information, Brody could not properly defend itself at the hearing.

Brody also had contended that its constitutional due process rights required that it be given fair warning of MSHA’s POV enforcement action. MSHA countered that Brody had the option of seeking expedited court review of the very first citation or order an inspector issued under the pattern sanction.  “But this assertion does not square with fundamental fairness, because the process envisioned by the Secretary is a months’ (if not years) long process, considering the likelihood of appeals,” Moran said.

Moran also found that broad hints MSHA had provided to indicate what constitutes a pattern of violations were partially incompatible with the legislative history of the Mine Act.  Congress had suggested that § 104(e) pattern notices were intended as a last resort against mine operators, after other enforcement mechanisms under the Act had failed, he said.

Moran’s decision underscores mine operators’ complaint that it is unfair to count issued citations and orders in determining their POV eligibility.  Further, they contend the POV rule is vague and the POV criteria are subject to change by MSHA without notice and comment.