Secretary of Labor v. Pocahontas Coal Company, LLC

Plain-English summary

MSHA issued Pocahontas Coal a pattern-of-violations notice based on 36 citations and orders concerning roof, rib, emergency-preparedness, and escapeway hazards. Pocahontas directly contested the notice before the Commission, separate from later withdrawal orders issued under the pattern provisions. The Commission majority held that section 105(d) authorizes direct review of citations, orders, proposed penalties, and abatement periods, but not a pattern notice standing alone. It explained that the operator could challenge the notice when contesting a related section 104(e) withdrawal order because jurisdiction over that order permits other appropriate relief. Commissioner William I. Althen concurred only in the result, reasoning that a pattern notice was not ripe for review until a withdrawal order created concrete legal consequences. The Commission affirmed the Judge and dismissed the direct contest for lack of jurisdiction.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 814(e), 815(d)
• Outcome: The dismissal was affirmed, and Pocahontas Coal's direct contest of the pattern-of-violations notice was dismissed for lack of jurisdiction.
• Key point: A pattern notice cannot be challenged alone, but its validity may be reviewed in a contest of a related section 104(e) withdrawal order.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,                             :                   

MINE SAFETY AND HEALTH                 
 :

ADMINISTRATION (MSHA)                    
 :

:                               

v.                                              
 :                    Docket No. WEVA 2014-202-R

:           

POCAHONTAS COAL COMPANY, LLC  
 :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen,
Commissioners

DECISION

BY: Jordan, Chairman; Young, Cohen, and Nakamura,
Commissioners

This case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). It involves
a notice of contest filed by Pocahontas Coal Company, LLC challenging the
validity of a notice of pattern of violations issued by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) pursuant to section
104(e)(1) of the Mine Act, 30 U.S.C. § 814(e)(1).[1]
At issue in this case of first impression is whether section 105(d) of the Act,
30 U.S.C. § 815(d), grants the Commission jurisdiction to hear an operator’s direct
challenge to a notice of pattern of violations, independent of a contested
section 104(e) withdrawal order. We conclude that it does not.

I.

Statutory Summary and Background

Section
104(e) of the Mine Act, 30 U.S.C. § 814(e), sets
forth provisions regarding MSHA’s issuance and termination of a notice of
pattern of violations (“POV notice”). It provides that if an operator has
demonstrated a pattern of violating mandatory health or safety standards and
those violations are of a significant and substantial nature (“S&S”), the
operator shall be given “written notice” that such a pattern exists.[2]
30 U.S.C. § 814(e)(1). If an inspector cites the operator for a S&S
violation within 90 days following issuance of the POV notice, then MSHA may
issue a withdrawal order under section 104(e) of the Act. The operator will
thereafter be subject to additional withdrawal orders for each S&S
violation subsequently discovered until a complete inspection of the mine has
revealed no further S&S violations.    30 U.S.C. § 814(e)(1)-(3); see also
Brody Mining, LLC, 36 FMSHRC 2027, 2028-29 (Aug. 2014).  

In enacting the pattern
of violations provisions, Congress
explicitly recognized that they were necessary to “provide an effective
enforcement tool to protect miners when the operator demonstrates [its]
disregard for the health and safety of miners through an established pattern of
violations.” S. Rep. No. 95-181, at 32 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977 (“Legis. Hist.”), at 620 (1978). The
legislation essentially introduced enhanced enforcement procedures for mine
operators that have displayed a proclivity for violating the Act. It is
employed when MSHA’s standard enforcement scheme is unable to address a mine’s
problem of recurrent violations. See
Brody, 36 FMSHRC at 2029.

Despite its inclusion in the 1977 Mine Act, the
pattern of violations authority has only recently been employed by the
Secretary as an enforcement tool. According to a report released in 2010 by the
Department of Labor’s Office of the Inspector General (“OIG”), MSHA had only
once issued a POV notice to an operator in the 32 years since passage of the
Act.[3]
In response to the report and recommendations contained therein, MSHA issued
revisions to its POV rule, which became effective on March 25, 2013. See
Brody, 36 FMSHRC at 2030. The instant
case involves one of the first POV notices issued since adoption of the newly
revised rule.

II.   

Factual and Procedural Background

On October 24,
2013, MSHA issued POV Notice No. 7219153 to Pocahontas’ Affinity Mine pursuant
to section 104(e)(1) of the Mine Act. The POV notice was issued following a
12-month screening period ending on August 31, 2013, after which MSHA
determined that Pocahontas had exhibited a pattern of violating the Mine Act’s
mandatory health and safety standards. The POV notice states:

Pursuant
to Section 104(e)(1) of the Federal Mine Safety and Health Act of 1977 (Mine
Act), you are hereby notified that a pattern of violations exists at the
Affinity Mine (ID 46-08878). A review of the S&S violations cited at the
mine demonstrates a pattern of violations. As illustrative of this pattern of
violations, the following groups of violations are representative of violations
which are of such nature as could have significantly and substantially
contributed to the cause and effect of coal or other mine health or safety
hazards.

Notice of Contest at 2, PCC
Ex. 1 - Att. Ex. A. The notice lists 36 different citations and orders issued
between September 6, 2012 and August 13, 2013, citing conditions and/or
practices that contribute to roof and rib hazards or emergency preparedness and
escapeway hazards. It further states that: “These groups of
violations, taken alone or together, constitute a pattern of violations of
mandatory health and safety standards . . . .” Id. at 2.

On November 26,
2013, Pocahontas filed a notice of contest asserting jurisdiction under section
105(d) of the Act contesting “the issuance of Section 104(e)(1) Written Notice
Number 7219153” and requesting an expedited hearing. Notice of Contest at 1, 6.
The contest was assigned to an Administrative Law Judge, and the matter was initially
set for hearing on   March 18, 2014.

As a
result of the POV notice, MSHA subsequently issued a number of section 104(e) withdrawal
orders to Pocahontas between December 9 and 30, 2013. Pocahontas shortly
thereafter contested the orders, and its contests were assigned to the same
Judge in nine separate dockets.[4]
The cases were set for hearing on May 14, 2014.

On January 24, 2014, Pocahontas filed an unopposed
motion to withdraw its previous request for an expedited hearing. It asked that
the hearing be rescheduled to allow the parties to complete discovery. The
Judge granted that motion on January 30.[5]
On February 27, 2014, the Secretary of Labor filed a motion to dismiss with
prejudice Pocahontas’ contest for lack of jurisdiction, asserting that the Act does
not permit Commission review of a POV notice independent of a subsequent
section 104(e) order. The Judge granted the Secretary’s motion.  36 FMSHRC 1371
(May 2014) (ALJ).

In granting the motion, the Judge held that the Mine
Act provides “no statutory authority for the Commission to hear a contest to a notice
of pattern of violations in the context of a dedicated proceeding.” Id. at
1372 (emphasis added). She determined that although section 105(d) of the Act
provides operators with the right to challenge the issuance or modifications of
citations and orders, it “does not afford a right to contest written notices.” Id.
The Judge also found that “the legislative history, the Secretary’s
regulations, Commission case law, and the Commission’s Procedural Rules do not
reveal any language which could be interpreted to grant the Commission
jurisdiction to hear a contest of a written notice of pattern of violations.” Id.
She concluded, however, that the Commission’s broad grant of authority to
direct “other appropriate relief” under section 105(d) permits Commission
review of the validity of the POV notice in the context of a contest to a
section 104(e) order issued as a result of the POV notice. Consequently, the
Judge stated that any challenges to the validity of the POV notice would be
heard when the subsequently issued section 104(e) orders were heard.[6]
Id. at 1373-74.

The Judge also declined to treat the POV notice as a
citation or order. She determined that the Act makes clear that the notice is a
separate document which must be issued prior to any order issued pursuant to
section 104(e). Lastly, she rejected Pocahontas’ claim that its inability to
directly contest the POV notice violated its right to due process. In addition
to the operator’s ability to challenge the POV notice once a section 104(e)
order has been issued, the Judge reasoned that the Secretary’s need to assure a
safe and healthy work environment at a mine with a history of serious
violations outweighed the need of the mine operator to be heard immediately. She
also found Pocahontas’ argument meritless given its “halfhearted attempt to
pursue [] prompt review of the matter” after the related section 104(e) orders
had been issued. Id. at 1374-75.

On
June 29, 2014, Pocahontas filed a petition for discretionary review challenging
the dismissal of its contest, which the Commission granted.

III.

Disposition

Pocahontas
argues that the Commission has broad jurisdictional power to hear all disputes
arising under the Mine Act, including the authority to review issues
surrounding the exercise of the Secretary’s enforcement actions. It asserts
that section 105(d) permits operators to challenge all enforcement actions
issued by MSHA, including a POV notice. Pocahontas maintains that because the
section 104(e) POV notice is a written allegation of a violation, it is an
enforcement action equivalent to a section 104 citation or order. 

As discussed
below, Pocahontas’ position conflicts with the language of the Act, its
legislative history, basic principles of administrative law, and Commission
case law. Accordingly, we conclude that the Commission lacks jurisdiction to
directly review the issuance of a POV notice.

A.    The Commission’s
jurisdiction to review enforcement actions is limited by Congress’ grant of
authority as set forth in the Act.

Although it is well settled that the Commission has
broad authority to address a wide range of disputes arising under the Mine Act,
the exercise of that authority is governed by the language of the Act’s
jurisdictional provisions. The Commission
has long recognized that it is an agency created under the Mine Act with
certain defined and limited administrative and adjudicative powers. See
generally, Kaiser Coal Corp., 10 FMSHRC 1165, 1169-70 (Sept. 1988); Old
Ben Coal Co., 1 FMSHRC 1480, 1484 (Oct. 1979); Rushton Mining Co.,
11 FMSHRC 759, 764 (May 1989). As an administrative agency created by statute,
the Commission cannot exceed the jurisdictional authority granted to it by
Congress. Kaiser Coal, 10 FMSHRC at 1169; Santa Fe Indus., Inc. v.
Green, 430 U.S. 462, 472–73 (1977); Civil Aeronautics Board v. Delta
Airlines, 367 U.S. 316, 322 (1961).

In Kaiser Coal, we explained that:

Several provisions of the
Mine Act grant subject matter jurisdiction to the Commission by establishing
specific enforcement and contest proceedings and other forms of action over
which the Commission presides: e.g., section 105(d), 30 U.S.C. §
815(d), provides for the contest of citations or orders, or the contest of
civil penalties proposed for such violations; section 105(b)(2), 30 U.S.C.
§ 815(b)(2), provides for applications for temporary relief from orders issued
pursuant to section 104; section 107(e), 30 U.S.C. § 817(e), provides for
contests of imminent danger orders of withdrawal; section 105(c), 30 U.S.C. §
815(c), provides for complaints of discrimination; and section 111, 30 U.S.C. §
821, provides for complaints for compensation.

10
FMSHRC at 1169 (emphasis added). Specific provisions, such as these, delineate
the scope of the Commission's jurisdiction. Id. Thus, contrary to Pocahontas’ argument, the Commission
does not possess plenary authority to review all enforcement actions taken
under the Act.

B.     Section 105(d)
does not grant the Commission jurisdiction to directly review POV notices.

In section 105(d), Congress explicitly set forth
enforcement actions that invoke this Commission’s jurisdiction. By section
105(d)’s express language, the
Commission’s jurisdiction under this section only attaches when an operator
contests MSHA’s issuance or modification of a citation, order, or proposed penalty assessment, or the reasonableness of
the abatement time. Section 105(d) states in pertinent part:

If, within 30 days of receipt thereof, an operator of
a coal or other mine notifies the Secretary that he intends to contest the
issuance or modification of an order issued under section 104, or
citation or a notification of proposed assessment of a penalty issued under
subsection (a) or (b) of this section, or the reasonableness of the length
of abatement time fixed in a citation or modification thereof issued under
section 104,  . . . the Secretary shall immediately advise the Commission of
such notification, and the Commission shall afford an opportunity for a hearing
. . . and thereafter shall issue an order, based on findings of fact,
affirming, modifying, or vacating the Secretary's citation, order, or proposed
penalty, or directing other appropriate relief.

30 U.S.C. § 815(d) (emphasis added).  

Significantly, section 105(d) does not mention
contesting the issuance or modification of a “notice of pattern of violations.”
In fact, although the statute specifically allows for contesting a “notification of
proposed assessment of a penalty,” it does not permit a challenge to any other
form of “notice.” This precise list of jurisdictional triggers strongly indicates
a Congressional intent to exclude other actions, such as other types of “notices.”
See Saxon v. Georgia Ass'n of Indep. Ins. Agents, Inc., 399 F.2d 1010,
1014 (5th Cir. 1968) (holding that “a power which has been withheld or denied
by Congress cannot be found to exist as an ‘incidental’ and ‘necessary’

power” when Congress has specifically delineated other
powers).[7]
Indeed, the Mine Act’s legislative history provides that “an independent Mine
Safety and Health Review Commission is established to review orders, citations,
and penalties.” S. Rep. No. 95-181, at 11; Legis. Hist. at 599. Significantly,
the word “notice” is absent. See also Kaiser Coal, 10 FMSHRC at 1169; Quinland
Coals, Inc., 9 FMSHRC 1614, 1620-21 (Sept. 1987) (“The statutory scheme for
review set forth in section 105 provides for an operator’s contest of
citations, orders, and proposed assessment of civil penalties.”).

Accordingly, we conclude that the language of section 105(d) does not give the
Commission authority to review a direct challenge to a POV notice.

C.    POV notices
cannot be treated as citations or withdrawal orders for review purposes.

Faced with the language of section 105(d), Pocahontas
argues that the terms “citation” and “order” should be read broadly to
encompass all alleged violations, so as to include POV notices. This reading is
based in part on the location of the POV provision, which is found in section
104 of the Act – the section that primarily governs the process for citations
and orders. 30 U.S.C. § 814. However, the language of section 104 does not support this
theory.

Section 104(a) provides that a citation shall be
issued by the Secretary if an operator has

violated this Act, or any
mandatory health or safety standard, rule, order, or regulation promulgated
pursuant to this Act . . . . Each
citation shall be in writing and shall describe with particularity the nature
of the violation, including a reference to the provision of the chapter,
standard, rule, regulation, or order alleged to have been violated . . . [and]
fix a reasonable time for [] abatement.

30
U.S.C. § 814(a). Thus, according to the
statutory language and consistent with MSHA practice, a section 104 citation is
a written allegation, detailing a specific violation of a specific standard,
and containing a specific time by which the violation must be abated.

In contrast, a POV notice simply alerts a mine
operator that it has displayed a propensity for violating the Act through prior
S&S citations and orders referenced in the notice. It further informs the
operator that after being placed on notice, it faces enhanced enforcement
penalties if it continues to significantly and substantially violate
federal mine standards. See Brody, 36 FMSHRC at 2029, quoting S.
Conf. Rep No. 95-181, at 33, Leg. Hist. at 621 (stating that the POV notice
indicates “to both the mine operator and the Secretary that there exists at
that mine a serious safety and health management problem”).

A POV notice differs from an enforcement order under
the Act for similar reasons. Most significantly, “orders” under the Mine Act usually
require the withdrawal of miners from an affected area of the mine. See 30
U.S.C. §§ 814(b), (d)(1), (d)(2), and (e) (describing withdrawal orders due to
an operator’s failure to abate a violation, unwarrantable failure violations
under certain circumstances, or based on a pattern of S&S violations).[8]
A POV notice requires no such withdrawal or mine closure.

Additionally, section 104(e) employs both a POV notice
and a withdrawal order as discrete and sequential steps in the POV process. First,
the POV notice is issued. Then, if another S&S violation is found, a
withdrawal order follows. In other words, the notice and the withdrawal order
cannot be one and the same.

Section 110(a)(1) of the Act also requires the
proposal and assessment of a civil penalty for each violation of the Act in the
case of a citation or order. 30 U.S.C. § 820(a)(1). However, the Secretary lacks
the authority to propose a penalty after the issuance of a POV notice.

Furthermore, adjudicating a direct challenge to a
section 104(e) POV notice would not only ignore the statutory language, but would
conflict with the Act’s legislative history. In the Senate floor debate on the
final bill, Senator Schweiker, an author of the POV provisions, was repeatedly
asked by Senator McClure whether POV notices would be immediately and directly
reviewable by a court. Leg. Hist. at 1080-81. Senator Schweiker responded
that immediate judicial or administrative review would not be available but
that POV notices would be reviewable before the Commission after a section
104(e) withdrawal (closure) order had issued. In particular, he stated that an
operator would not have access to the courts after issuance of the POV notice
because “[n]othing has happened to him yet.” Id. at 1080. He explained
that the operator could seek Commission review with regard to a withdrawal
order and the Commission could grant relief. This debate reveals that Congress not
only considered the question of whether POV notices would be directly
reviewable, but that the drafters decidedly intended to prohibit such review.

In
its reply brief, Pocahontas points to judicial precedent indicating that the
Commission has authority to review orders issued under section 103(k), 30
U.S.C. § 813(k), even though the statutory language is silent on the matter.[9]
However, unlike a section 104(e) POV notice,
authority for Commission review of section 103(k) orders can be found in the Act’s
legislative history. S. Conf. Rep No. 95-181, at 13 (1977), Leg. Hist. at
601; see also Am. Coal Co. v. U.S. Dep’t of Labor, 639 F.2d 659,
660 (10th Cir. 1981); Pattison Sand
Co. v. FMSHRC, 688 F.3d 507, 515 (8th
Cir. 2012). In determining that the Commission possessed the requisite
jurisdiction to review section 103(k) orders, the Tenth Circuit found support
in its reading of the entire Mine Act, as
well as the legislative history, which states that “an operator . . . may appeal to the Commission the issuance of
a closure order.” Am. Coal Co., 639 F.2d at 660, quoting, S. Conf. Rep. No. 95-181,
at 13 (1977), Leg. Hist. at 601 (emphasis added). This language is particularly important, because a
section 103(k) order, like a MSHA enforcement order, frequently does result in
the withdrawal of miners through closure of an affected area. In contrast, a
POV notice, by itself, cannot result in withdrawal or closure.

Accordingly,
given the plain meaning of section 105(d), its relationship to section 104, and
the Act’s legislative history, we conclude that a POV notice cannot be treated
as a citation or order under the Mine Act.[10]

D.    An operator may
obtain Commission review of a POV notice during the contest of a related
withdrawal order issued pursuant to section 104(e).

The
Commission and the courts have consistently concluded that once jurisdiction
has attached, section 105(d) unambiguously sets forth a broad grant of
Commission authority to direct “other appropriate relief.” North Am.
Drillers, 34 FMSHRC 352, 356 (Feb. 2012). Thus, “where the statute creates
Commission jurisdiction, it endows the Commission with a plenary range of
adjudicatory powers to consider issues, to make findings of fact and
conclusions of law, and to render relief – in short, to dispose fully of cases
committed to Commission jurisdiction.” Drummond Co., 14 FMSHRC 661, 674
(May 1992); see also Kaiser, 10 FMSHRC at 1171; Climax
Molybdenum Co. v. Sec’y of Labor, 703 F.2d at 452.

In
the recent Brody decision, we held that in exercising our jurisdiction
over section 104(e) withdrawal orders, the Commission may address a challenge
to the validity of the POV rule underlying the withdrawal orders. 36 FMSHRC at
2035. The same is true for the instant case. Because the Commission has
jurisdiction to review the section 104(e) withdrawal orders, its section 105(d)
power to direct “other appropriate relief” grants us the requisite authority to
address Pocahontas’ challenge to the POV notice in the context of those orders.
See Leg. Hist. at 1080 (explaining that POV notices are
reviewable before the Commission once a section 104(e) withdrawal order has
issued).

Therefore,
the validity of POV Notice No. 7219153 is properly the subject of the
proceedings containing the section 104(e) withdrawal orders and may be heard by
the Commission during the contest of those orders.[11]

IV.

Conclusion

For
the reasons set forth herein, we conclude that the Commission does not have
jurisdiction under section 105(d) to review a direct challenge to a POV notice independent
of a section 104(e) withdrawal order. Accordingly, we affirm the Judge.
This contest proceeding is dismissed for lack of jurisdiction.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Commissioner Althen, concurring:

I
concur with the majority in result only. I reach that result through a markedly
different path.1 Based upon the following
considerations, I would find the validity of a POV determination is not
justiciable unless and until MSHA issues a section 104(e) withdrawal order
within the statutorily prescribed ninety day period.2

There is, of
course, a strong presumption that agency action is reviewable. See Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); Abbott
Laboratories v. Gardner, 387 U.S. 136, 140-41 (1967), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99 (1977)
(“Abbott Labs.”). However, that presumption is not absolute.

Principles of
justiciability limit the types of administrative agency actions amenable to
review. To be subject to review, the claimant’s dispute must be justiciable –
that is, inter alia, the controversy must have ripened into a dispute
concerning a final decision that has a direct and immediate impact upon the
complainant. Abbott Labs., supra. This element of justiciability serves
“to protect the agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete way by the
challenging parties.” Id. at 143-49.

In Abbott
Labs., the Court described ripeness as a flexible concept implicating
consideration of (1) whether the matter was in a posture amenable to judicial
review and (2) the hardship upon the parties stemming from withholding judicial
consideration. The Court identified these factors, stating that “[t]he problem
is best seen in a twofold aspect, requiring us to evaluate both the fitness of
the issues for judicial decision and the hardship to the parties of withholding
court consideration.” Id. at 149.

The Court
provided additional guidance regarding principles of the fitness for review in Bennett
v. Spear, 520 U.S. 154 (1997).

As a general matter, two conditions must be satisfied for
agency action to be “final”: First, the action must mark the “consummation” of
the agency’s decisionmaking process, Chicago & Southern Air Lines,
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113  – it must not be of a
merely tentative or interlocutory nature. And second, the action must be one by
which “rights or obligations have been determined,” or from which “legal
consequences will flow.”

Id. at 178 (quoting Port of Boston Marine Terminal
Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

In Ohio
Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998), the Court again
addressed factors related to ripeness for review. There, the Sierra Club
challenged a Land and Resource Management Plan developed by the United States
Forest Service. The Plan established logging goals but did not permit any
specific logging activities. The Court found the case was not justiciable:

[T]he provisions of the Plan that the Sierra Club challenges do
not create adverse effects of a strictly legal kind, that is, effects of a sort
that traditionally would have qualified as harm. . . . [T]hey do not
command anyone to do anything or to refrain from doing anything; they do not
grant, withhold, or modify any formal legal license, power, or authority; they
do not subject anyone to any civil or criminal liability; they create no legal
rights or obligations.

Id. at 733 (citations omitted).

Following these
precepts, federal courts have assiduously applied the principles of ripeness
for review in considering the availability of judicial review of agency
decisions. Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is
not ripe for adjudication if it rests upon ‘contingent future events that may not
occur as anticipated, or indeed may not occur at all.’”), quoting Thomas v. Union Carbide
Agricultural Products Co., 473 U.S. 568, 580–581 (1985) (quoting 13A Wright, Miller, & Cooper,
Federal Practice and Procedure § 3532, at 112 (1984)); National Park Hospitality Ass’n v. Dep’t of
Interior, 538 U.S. 803, 809 (2003) (the regulation did “not create ‘adverse effects of a strictly legal kind,’
which we have previously required for a showing of hardship.”); Joshi
v. NTSB, 791 F.3d 8, 13 (D.C. Cir. 2015) (“Before
we may consider the agency’s action a final ‘order,’ the action must “determine
rights or obligations or give rise to legal consequences’”) (quoting Safe
Extensions, Inc. v. F.A.A., 509 F.3d 593, 598 (D.C. Cir. 2007)); Minnesota Public Utilities Comm’n
v. FCC, 483 F.3d
570, 582–583 (8th Cir. 2007) (“The order
only suggests the FCC, if faced with the precise issue, would preempt fixed
VoIP services. Nonetheless, the order does not purport to actually do so and
until that day comes it is only a mere
prediction.”); Meredith v. FMSHRC,
177 F.3d 1042, 1047 (D.C. Cir. 1999) (“We have
held repeatedly and across agency contexts that an order will be considered
final to the extent that it ‘imposes an obligation, denies a right, or fixes
some legal relationship, usually at the consummation of an administrative
process.’”) (quoting Transwestern Pipeline Co. v. FERC, 59 F.3d 222, 226
(D.C.Cir.1995) (quoting State of Alaska v. FERC, 980 F.2d 761, 763
(D.C.Cir.1992)).

Mindful of these
principles, I turn to the first prong of Abbott Labs., supra., the
ripeness of the issue for judicial determination. I conclude that an agency
decision to designate an operator as a “pattern violator” does not impose any
immediate obligations upon an operator. Without doubt, a POV determination may
have – indeed, is likely to have – serious legal consequences for an operator. However,
such consequences arise if and only if the operator commits an S&S
violation within 90 days following the determination. Whether the POV
determination will affect an operator in a “concrete way” depends upon whether
the operator commits an S&S violation within 90 days following the issuance
of the notice of the determination. Consequently, a POV determination, standing
alone, does not impose any new legal obligations or sanctions upon an operator.3

There
is no doubt that the POV determination of which an operator receives “notice”
is final from the standpoint of the agency. There is no appeal within MSHA from
the POV determination. Review and reversal by the Commission is the only
recourse, and an S&S violation within 90 days will result in issuance of a
section 104(e) withdrawal order followed by the chain of 104(e) orders. However,
the critical point here is that the heightened sanction does not apply
immediately and concretely to future S&S violations.

Regarding the
second prong of Abbott Labs., supra., the hardship upon the parties, it
would be disingenuous to ignore the reality of mine safety enforcement. One may
reasonably infer that MSHA inspectors pay especially close attention during an
inspection of an alleged “pattern violator.” Moreover, MSHA frequently issues
S&S citations to virtually every operator. Therefore, once an operator has
received notice of a POV determination, it very likely will receive an S&S
citation within 90 days and experience the adverse consequences from the POV
determination.

However, in
considering hardship in the context of reviewing the agency determination, I
also weigh the extent of hardship flowing from a delay of review until the
issue has ripened into a concrete dispute with legal consequences. In this
respect, within 90 days of issuance, a disputed POV determination will either
fall by the wayside or ripen into a concrete and justiciable dispute.4
I do not dismiss the “hardship” of each day during which an operator is on a
chain of withdrawal orders. However, an operator fearing the commencement of
such chain during the 90-day period may begin immediately to review the
asserted basis for the POV determination and marshalling facts, evidence, and
arguments to rebut the basis of the POV determination.

In
summary, prior to initial issuance of a section 104(e) withdrawal order, the
impact of a POV determination is conditional. A dispute over the validity of
the determination will either become moot or ripen into a concrete controversy
within 90 days. For these reasons, I would find the operator’s notice of
contest to the POV determination filed prior to issuance of a section 104(e)
withdrawal order does not present a justiciable controversy.

/s/
William I. Althen

William
I. Althen, Commissioner

[1] 30 U.S.C. § 814(e)(1) provides:

If an operator has a pattern
of violations of mandatory health or safety standards in the coal or other mine
which are of such nature as could have significantly and substantially
contributed to the cause and effect of coal or other mine health or safety
hazards, he shall be given written notice that such pattern exists. If, upon
any inspection within 90 days after the issuance of such notice, an authorized
representative of the Secretary finds any violation of a mandatory health or
safety standard which could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard, the
authorized representative shall issue an order requiring the operator to cause
all persons in the area affected by such violation, except those persons
referred to in subsection (c), to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary determines
that such violation has been abated.

[2] The S&S terminology is taken from section
104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), which distinguishes as more
serious any violation that “could significantly and substantially contribute to
the cause and effect of a . . . mine safety or health hazard.”

[3] The Commission has taken judicial notice of the OIG
Report. See Brody, 36 FMSHRC at 2030 n.4.

[4] The Judge dismissed eight of the nine contest
dockets, electing to address the validity of the withdrawal orders in the
penalty cases in which the operator had contested the proposed penalties
associated with those orders. ALJ Ord. of Dism. at 2 (Oct. 29, 2014).

[5] Pocahontas made similar requests in the related cases
containing the underlying violations and the subsequent section 104(e) orders.

[6] Pocahontas raised the same challenge to the validity
of POV Notice No. 7219153 in Docket No. WEVA 2014-395-R, which is the contest
docket for associated section 104(e) Order Nos. 9001636 and 3576153. Recently,
in two separate orders granting summary decision in favor of the Secretary, the
Judge upheld the validity of the POV notice and the section 104(e) orders and
dismissed the case. See Nov. 3, 2015 ALJ Order and Dec. 24, 2015 ALJ Order.
Pocahontas appealed the Judge’s orders and the Commission granted review on
January 6, 2016. The Judge’s substantive ruling on the POV notice raises the
question of whether the issue currently before us is moot because Pocahontas
has obtained Commission review of the validity of POV Notice No. 7219153, which
is the relief it seeks from the instant appeal.

A case is moot when the
issues presented no longer exist or the parties no longer have a legally
cognizable interest in the outcome. North Am. Drillers, LLC, 34 FMSHRC
352, 358 (Feb. 2012); Climax Molybdenum Co., 2 FMSHRC 2748, 2750 (Oct.
1980), aff’d 703 F.2d 447 (10th Cir. 1983). However, when there is a
substantial likelihood that an allegedly moot question will recur, the issue
remains justiciable. Marfork Coal Co.,
Inc., 29 FMSHRC 626, 628-29 (Aug.
2007); North Am. Drillers, 34 FMSHRC at 358; Mid-Continent Res., Inc. 12
FMSHRC 949, 957 (May 1990). Although Pocahontas has obtained the relief it
seeks here, and thus no longer has a legally cognizable interest in the outcome,
we conclude that the question of whether an operator must wait for a section
104(e) order to issue before it may challenge a notice of POV is highly likely
to recur with other operators. Therefore, the issue presented here remains
justiciable.

[7] In accordance with the language of section 105(d),
Commission Procedural Rule 20(a)(1) states that an operator may contest:

(i)
A citation or an order issued under section 104 of the Act, 30 U.S.C. 814;

(ii) A modification of a citation or an order issued under section 104 of the
Act; and

(iii) The reasonableness of the length of time fixed for abatement in a
citation or modification thereof issued under section 104 of the Act.

30 C.F.R. §
2700.20(a)(1). Commission Procedural Rule 26 provides that an operator may
contest a “proposed penalty assessment.” 30 C.F.R. § 2700.26. As in the
statute, “notice” is omitted in both of these provisions.

[8] Throughout the history of mine safety legislation,
references to “orders” issued by the Secretary have generally been in the
context of a withdrawal of miners or of mine closures. See, e.g., sections
203 (a) and (c) of the Coal Act of 1952, 30 U.S.C. § 471 et seq. (1964)
(repealed 1969); sections (a) and (b) of the Metal and Nonmetal Mine Act of
1966, 30 U.S.C. § 721 et seq. (1976) (repealed 1977); sections 103(f) and 104
of the Coal Act of 1969, 30 U.S.C. §801 et. seq. (1970) (amended 1977). However,
withdrawal and closure are not always required, particularly where the
Secretary has determined that there is no physical area affected or are any miners
to withdraw. See Mid-Continent Res., Inc., 12 FMSHRC 949, 951 n.4, 957
(May 1990).

[9] Although the Secretary correctly asserts that
Pocahontas did not raise the section 103(k) argument prior to its reply brief,
we believe that this example of the Commission’s jurisdictional authority is
sufficiently related as part of the larger reading of the Act’s structure and
language, and therefore, should be considered. See Oak Grove Res., LLC,
33 FMSHRC 2657, 2664

(Nov. 2011).

[10] Having concluded that we have no jurisdiction to
directly review the POV notice received by Pocahontas, we do not reach its
argument that it was deprived of procedural due process in this case because it
could not immediately contest the POV notice. That argument can be raised by
Pocahontas in a challenge to a section 104(e) withdrawal order involving a
specific factual situation. We note that in Brody we concluded that an
operator may obtain a hearing on a POV notice after it has received a section
104(e) withdrawal order and be afforded due process.    36 FMSHRC at 2044. We
further note that, as evidenced by its numerous motions to reschedule or stay
the hearings in the instant or related section 104(e) dockets, Pocahontas’ own
actions delayed the adjudication of the very issue it sought review of here.

[11] As previously explained, the validity of the subject
POV Notice was properly challenged and considered by a Commission ALJ alongside
its contest of two related section 104(e) withdrawal orders in Docket No. WEVA
2014-395-R. See n.6, supra.

1 I dissented in Brody Coal Co., 36 FMSHRC 2027
(Aug. 2014), in which the Commission found that MSHA’s POV regulation is facially
valid by holding that MSHA (1) did not violate the Administrative Procedure Act
by failing to provide notice or opportunity to comment on the specific pattern
criteria created by the regulation, and (2) does not deny due process by
placement of an operator in POV status without having proved any S&S
violation. Those issues are not before us in this case.

2 In discussing mootness, the majority finds this case
is not moot and, therefore, “remains justiciable.” Slip op. at 5 n.6. I agree
in the sense that if the case were justiciable in the first instance, it would not
now be moot.

3 Senator Schweiker’s statement that when a POV Notice
is issued “nothing has happened yet” goes to justiciability. Legis. Hist.
at 1080. As the District of Columbia Circuit has observed: “Ordinarily, a claim
that a challenge to an agency’s final legal position must await an enforcement
proceeding is analyzed under the ripeness doctrine’s requirements that issues
be fit for review and (in some cases) that deferral of review would pose
significant hardship on the complaining party.” Unity08 v. FEC, 596 F.3d
861, 865 (D.C. Cir. 2010).

4 The Commission has jurisdiction to grant declaratory
relief if, “‘one or both of the parties have taken steps or pursued a course of
conduct which will result in an ‘imminent and inevitable litigation, provided
the issue is not settled and stabilized by a tranquilizing declaration.’” Mid-Continent
Res., Inc., 12 FMSHRC 949, 955 (May 1990), quoting Bruhn v. STP Corp., 312 F. Supp. 903, 906 (D.
Colo. 1970), quoting Borchard, Declaratory
Judgments 57 (2d ed. 1941); North American Drillers, LLC, 34 FMSHRC
352 (Feb. 2012). In light of the annual issuance of literally tens of thousands
of S&S citations, an operator might argue, unsuccessfully in light of the
majority’s decision, that issuance of an S&S citation within 90 days is
“inevitable” and delay serves no purpose. In this case, however, the operator
neither sought a declaratory judgment nor proffered evidence that a section
104(e) withdrawal order is inevitable following an adverse POV determination.