Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/610317
57 AGGREGATES MANAGER December 2015 ing against) a pattern charge, the case was remanded with directions to apply the Commission's stated definition of POV to determine whether the Secretary has proven one or more patterns of violations with respect to the 29 citations and orders affirmed as S&S. In a separate concurrence, Chairman Jordan agreed that the ALJ had jurisdiction and the decision should be vacated and remanded. However, she rejected any consideration of procedural/due process error that resulted from the Secre- tary's refusal to provide the theory of POV, stating that the POV notice "informed" Brody of the specific conduct upon which the Secretary would rely to support the POV. She lik- ened the POV notice to other types of enforcement actions (S&S, unwarrantable failure) which, she contended, the Com- mission has never concluded that due process required the Secretary to provide his underlying theory for the validity of issuance. She also found that Brody failed to prove prejudice concerning what it would have done differently at hearing. Commissioner Althen (concurring in part and dissenting in part) dissented and found that the majority's decision regard- ing the identification of a specific number of S&S violations to be a "makeweight to justify reversal." Althen found that the ALJ directed the Secretary to provide an explanation of the theory by which the 54 alleged violations set forth in the POV notice constituted a pattern of violations, not that the Secretary had a duty to pro- vide a specific number of violations necessary to prevail, as the majority found. Althen concluded the major- ity's decision erroneously "plucks one word" from the Judge's lengthy dis- missal order to "conjure a reason for reversal," but the Secretary failed to provide any of the necessary informa- tion covered by the ALJ's order. Althen recognized that the major- ity's decision requires the Secretary to provide "exactly the kind of infor- mation required by the judge in this case" and basically "reverses the judge for applying a standard with which they agree and which they them- selves now impose upon the Secre- tary." Althen found that the failure to provide an ascertainable basis for the POV determination, standing alone, demonstrated a denial of due process warranting dismissal. Althen questioned the initial POV determination by MSHA, given the Secretary could not explain the relationship among the alleged violations that led to that determination until after a hearing. Because of the "outcome determinative element" of the POV charge, the Secretary must provide "in advance" a sufficient theory of such relationships to allow the operator to prepare to rebut the charge. Commissioner Althen envisions balancing information covered by the deliberative process privilege with sufficient discovery, noting that such information would not be of the type to come from individual inspectors. It is unclear what the ALJ will do on remand with the Commission's directions. Further, Brody's challenge to the facial validity of the rule is still pending before the U.S. Court for Appeals for the D.C. Circuit. As my colleague, Brad Oakley, said in his November 2014 article "Challenges Con- tinue on POV Rule," operators should continue to monitor compliance performance, implement specific compliance goals, and collect as much evidence as possible to chal- lenge improperly issue citations/orders should MSHA issue a POV notice. AM ROCKLAW B E K A - L U B R I C A T I O N S P E C I A L I S T S S I N C E 1 9 2 7 1 . 8 8 8 . 8 6 2 . 7 4 6 1 w w w. b e k a - l u b e . c o m Every Beka-Max EP1 automatic lubrication system is built to keep your machine performing smoothly in all seasons and altitudes. • Cast aluminum base withstands impacts and hot/cold temperature swings without leaks • No springs! Eccentric drive gear ensures reliable service in all climates and conditions • Engineered to pump grease down to -13°F/-25°C Here are the about automatic lubrication! COLD HARD FACTS 026-073 Agg Manager 4.5x4.5 4C.indd 1 2015-10-06 12:14 PM