Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/403276
41 AGGREGATES MANAGER November 2014 ROCKLAW and a possible POV determination. e majority found that this inhibited MSHA from eff ectively considering recent citation history in making POV determinations. Brody also argued that MSHA irrationally ignored the safety and compliance benefi ts of the PPOV process. However, the Commission found that the agency rationally concluded that PPOV failed to eff ect "systematic, long-term improvements," and that the current rule provides "more sustained improvements" by placing more responsibility on mine operators to maintain compliance. e Commission unequivocally rejected Brody's due process challenge to the rule. e Commission did fi nd, contrary to the administrative law judge, that Brody had a strong private property interest in continuing its mining operations. However, the Commission determined that the government's interest in basing POV determinations on non-fi nal orders was strong. Furthermore, the fi nal factor in the due process analysis — the risk of erroneous deprivation of property — was adequately addressed by the POV process and other post-deprivation procedures available to operators. For example, the Commis- sion noted that the online monitoring tool provides operators with the opportunity to address errors before incurring a POV designation; operators can further address citations during closeout conferences and request expedited hearings for citation contests when nearing POV designation. e Commission also noted various "post-deprivation" (i.e., post-POV) litigation op- tions, such as seeking expedited temporary relief under section § 105(b)(2) of the Mine Act or expedited proceedings on contests of withdrawal orders. Finally, the Commission rejected the argument that MSHA's initial POV pa ern criteria required notice-and-comment rulemaking. It found that the pa ern criteria are a general state- ment of policy rather than a legislative rule, as they allow for suf- fi cient agency discretion in their application. e Commission also held that the rule was not impermissibly retroactive and that the Secretary could consider citations before the eff ective date (March 25, 2013) in assessing POV status. Commissioner William I. Althen fi led a dissent, fi nding the pa ern criteria to constitute a binding norm requiring no- tice-and-comment rulemaking. Commissioner Althen pointed out that the revised rule does not even defi ne the "pa ern" that would result in POV status; yet, it instructs MSHA to create "arbitrary numerical criteria" to implement this vague statutory term. Commissioner Althen also found the POV procedures to violate due process and would require MSHA to include a mea- sure of pre-deprivation review into the lengthy POV determina- tion process. He discounted the Secretary's claim that the POV rule served any government interest in immediate correction of imminent health or safety hazards, calling POV "a long-term weapon aimed at culture rather than specifi c hazard." e holdings and arguments outlined in this article may be scrutinized yet again, as the Brody decision has been appealed to the D.C. Circuit. Until review by a higher court, however, MSHA's "criteria" approach to pa ern determination remains the rule going forward and entrusts MSHA with signifi cant discretion in determining which mines qualify for pa ern des- ignations. Consequently, mine operators must take all available precautions, including monitoring compliance performance, implementing specifi c compliance goals, and collecting as much evidence as possible regarding citations issued in order to maximize the likelihood of a successful outcome should a POV notice be issued. AM Luff Industries Ltd. tf: 1.888.349.LUFF (5833) e: info@luffindustries.com w: www.luffindustries.com CONVEYING IDLERS | PULLEYS | IMPACT BEDS | ACCESSORIES Built for Maximum Impact CEMA D Impacts designed with reinforced end plates and angle iron to take maximum load & impact IMPROVE YOUR PERFORMANCE 7H[W,1)2WRRUYLVLWZZZDJJPDQFRPLQIR