Oral arguments were presented before the Sixth Circuit  Court of Appeals in Cincinnati last week, pitting the  mining industry against MSHA over the agency’s pattern  of violation (POV) rule. Jackson Lewis attorney Henry  Chajet argued on behalf of the National Mining  Association, National Stone, Sand, and Gravel  Association, Portland Cement Association, Kentucky  Coal Association, and Ohio Coal Association.

The industry contends that the POV rule exceeds  MSHA's authority under the Mine Act, violates  members’ due process rights, and is unlawful, arbitrary  and capricious. The rule departs significantly from past  agency practice. One onerous change allows MSHA to  POV-classify a mine operator based on serious  violations merely alleged by enforcement personnel,  rather than those that have been judicially reviewed. A  substantial number of such violations are reduced or  vacated by MSHA or a judge once contested.

Short of an immediate, broad shutdown order, the POV  rule is among the most powerful tools in MSHA’s  enforcement arsenal. MSHA considers a mine to be a  pattern violator once the mine has received a number of  violations MSHA alleges are significant and substantial  (S&S), among other criteria. Once labeled as patternlisted, MSHA can issue an order withdrawing miners  from any affected area of the mine until the alleged  hazard is abated, each time the mine receives a single S&S citation.

MSHA would terminate an operator’s POV notice either  after a mine-wide inspection produces no S&S  violations or where no withdrawal order is issued within  90 days of the date the notice was sent. Given the  number of S&S citations mines typically receive, getting  off pattern status is extremely difficult. Relying on citations that it issued even before the new  rule took effect in March, MSHA labeled four  underground coal mines in West Virginia and Kentucky  as pattern violators last fall. Two of them now are in  non-producing status.