Aggregates Manager Digital Magazine
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AGGREGATES MANAGER December 2015 56 AGGREGATES MANAGER December 2015 56 Rock Review Commission determines that ALJ erred in invalidating Brody POV notice prior to hearing. POV LITIGATION? by Patrick W. Dennison Patrick Wayne Dennison is an attorney in Jackson Kelly PLLC's Pittsburgh, Pa., office, practicing in the Occupational Safety and Health Practice Group and the Coal and Oil and Gas Industry Groups. He can be reached at 412-434- 8815 or pwdennison@ jacksonkelly.com. A Roadmap for T he Review Commission vacated ALJ Moran's decision in Brody Min- ing, LLC, sending the case back for further proceedings after conclud- ing that ALJ Moran erred in invalidating the POV notice issued to Brody. Brody Mining, LLC, Docket Nos. WEVA 2014-82-R, et al. (Sept. 29, 2015). The majority's decision, led by Commission- ers Young, Cohen, and Nakamura (majority), first upheld jurisdiction based on a January 2014 order that consolidated all contests of the ยง 104(e) withdrawal orders. The majority rejected the Secretary's argument that the in- terlocutory appeal of the facial validity of the rule pending before the D.C. Circuit deprived the ALJ of jurisdiction. Chairman Jordan and Commissioner Althen concurred with the ma- jority's decision on jurisdiction. After determining that the ALJ had jurisdic- tion, the majority then concluded that the ALJ erred by dismissing the pattern notice prior to the hearing. In so concluding, the majority relied on the criteria the Mine Safety and Health Administration (MSHA) reviews to identify mines for POV and stated: a "pattern of violations" . . . is established by an inspection history of recurrent S&S violations of a nature and relationship to each other such that the violations demon- strate a mine operator's disregard for the health or safety of miners. No particular number of S&S violations is required in or- der to constitute a pattern of violations, and a finding of a pattern of violations does not presuppose any element of intent or state of mind of the operator. The majority agreed with the Secretary that a "pattern" does not require a particular number of citations and concluded that the ALJ erred by requiring a precise number. The majority also found the ALJ's dismissal of the charge prior to hearing to be an "overly harsh remedy." In a small victory for mine operators, the majority agreed with the ALJ that "the Sec- retary is ordinarily required to disclose his the- ory of how the groupings in a POV notice con- stitute one or more patterns of violations" and "Brody was entitled to the Secretary's theory of how the groupings amounted to patterns prior to the hearing on the pattern so as to be able to defend against the pattern charges." The majority provided a "roadmap" for liti- gating future POV cases: the Secretary may call witnesses, "such as inspectors or district managers, who will testify about how the S&S violations constitute a POV" and, through prehearing orders and discovery, the opera- tor may become familiar with the Secretary's theory of the pattern. The majority cautioned, however, that no discovery or inquiry regard- ing "MSHA's prosecutorial discretion in issu- ing a POV notice" was appropriate. Because the majority found that the ALJ's dismissal prevented the Secretary from pre- senting evidence for (and Brody from defend-