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.