Aggregates Manager Digital Magazine
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AGGREGATES MANAGER November 2014 40 Commission upholds MSHA's use of non-final violations in POV determinations. by K. Brad Oakley K. Brad Oakley is a member in Jackson Kelly PLLC's Lexington, Ky. office, where he practices with the Occupational Safety and Health Practice Group. He can be reached at 859-288-2835 or via email at kboakley@jacksonkelly.com. CHALLENGES Continue on POV Rule I n January 2013, the fi nal Pa ern of Violations (POV) rule was announced by the Mine Safety and Health Administration (MSHA). MSHA amended the POV rule by making two signifi cant changes: it eliminated the preliminary Potential Pa ern of Violations (PPOV) notice and review process and the requirement that only violations becoming fi nal orders be used for POV determination. e rule also states that MSHA will review certain data each year to determine if mines meet specifi c POV "pa ern criteria," which are to be posted on MSHA's website. MSHA enforced the POV rule (30 C.F.R . Part 104) for the fi rst time in October 2013, placing four mine operators on its POV list. National trade associations and a few mine operators challenged the rule in federal court. On Aug. 19, 2014, the Sixth Circuit Court of Appeals held that it lacked jurisdiction to review this challenge. Nat'l Mining Ass'n et al. v. Sec'y of Labor, Docket Nos. 13- 3324/3325, 2014 WL 4067867 (6th Cir. Aug. 19, 2014). Brody Mining recently brought a facial challenge to the POV rule in front of the Federal Mine Safety and Health Review Commission (Commission). A 4-1 majority held that the rule is facially valid and that it was not applied in an impermissibly retroac- tive manner to Brody. Brody Mining , LLC v. Sec'y of Labor, WEVA 2014-82-R et al., 2014 WL 4491147 (Aug. 28, 2014). e Commission upheld the use of non-fi nal violations in making the POV determination. Find- ing the term "violation" in § 104(d) to be ambig- uous, the Commission deferred to the Secretary's interpretation. It noted that the POV provisions of § 104(d) parallel the unwarrantable failure provisions of § 104(e), which do not condition enforcement on having a fi nal order. e majority ultimately found the Secretary's interpretation to be consistent with the language, structure, and history of the Mine Act. e Commission next rejected Brody's assertion that the POV regulations were "arbitrary, capri- cious, an abuse of discretion, or otherwise not in accordance with law," in violation of the Adminis- trative Procedure Act. Brody argued that, in adopt- ing a rule basing POV determinations on non-fi nal S&S citations, MSHA failed to adequately consider that S&S citations are overturned at a signifi cant rate upon review. However, the Commission found that MSHA expressly considered evidence that S&S citations may be subsequently changed or overturned, and that there was a rational connec- tion between the facts considered and the policy choices made. It found that even if 20 to 30 percent of S&S citations were overturned, there could still be a signifi cant number of violations on which to base a pa ern determination. Furthermore, the prior rule requiring fi nal orders resulted in substantial delay between the issuance of citations Rock