On December 3, 2013, the U.S. Court of Appeals for the Sixth Circuit issued an Order in the case of National Mining Association v. Federal Mine Safety & Health Administration, denying several mine operators’ request that the Court stay the application of a rule that the Mine Safety & Health Administration (MSHA) had issued in January 2013. The rule in question is MSHA’s updated “Pattern of Violations” Final Rule (POV Rule), which defines MSHA’s ability to classify individual mines as habitual offenders, a classification that serves as a precursor to eventual closure.

Under the Federal Mine Safety & Health Act (the Mine Act), MSHA is required to identify mines that have a “pattern of violations of mandatory health or safety standards” that “could have significantly and substantially contributed to the cause and effect of coal or other mine health or safety hazards.” Once a mine operator finds its mine on MSHA’s “pattern of violations” (POV) repeat offender list, that mine is subject to increased scrutiny. MSHA then has the ability to shut down all or part of the specific mine in question if a subsequent inspection reveals any additional “significant and substantial” violations.

Since its issuance in January, the POV Rule has caused much nervousness in the mining industry because, according to many, it allows MSHA to place mines into POV status based on discretionary factors and without the operator in question ever having been found guilty of a prior infraction at that mine. In particular, the new POV Rule allows MSHA to consider non-final citations when determining whether a mine should be subject to POV scrutiny. In other words, the new Rule allows MSHA to place mines into POV status based on an inspector’s allegation that there is a “significant and substantial” violation at a mine. In the past, only final orders of the Federal Mine Safety and Health Review Commission could be considered relevant. The industry has taken exception to this amendment because it effectively allows MSHA inspectors, who in the past have been accused of “over-writing” citations, to determine whether a mine will be placed into the program, effectively eliminating the safeguards promised the operator by the judicial process.

Furthermore, under the new POV Rule, MSHA is no longer required to warn operators before their mines are placed into POV status. In the past, MSHA had utilized an early warning system that, according to the Petitioners in National Mining Association, “had both resulted in improved safety and provided a constitutionally sound method to address potential government errors that would otherwise lead to improper closure order sanctions.”

In National Mining Association, a group of mine operators placed into POV status banded together and requested that the Court stay the application of the POV Rule, arguing that its issuance exceeded MSHA’s authority and violated the operators’ due process rights. The Court, however, denied the request, finding that the Petitioners had not provided any evidence of increased compliance costs caused by the POV Rule. The Court also found that these Petitioners in particular already “have an approved and implemented corrective action plan in place” (and, thus have not been harmed by the Rule). The Court also found that, even without the POV Rule, MSHA would still maintain its enforcement powers under other sections of the Mine Act, something that the mine operators admitted.

The Court’s decision was driven largely by its recognition of the “public interest in increasing mine safety.” Accordingly, as a result of National Mining Association, the POV Rule remains in place and intact and mine operators should continue to be aware. Under the new Rule, the possible ramifications of a “significant and substantial” citation have been greatly increased.