Pocahontas Coal Company, LLC v. Secretary of Labor and Secretary of Labor v. Pocahontas Coal Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA issued a pattern-of-violations notice to Pocahontas Coal's Affinity Mine after a nationwide screening and further review of the mine's enforcement history, injuries, and claimed mitigating circumstances. The final notice relied on 34 significant-and-substantial violations, including recurring roof and rib hazards and recurring escapeway and emergency-preparedness hazards. Pocahontas argued that the governing rule lacked a usable definition of pattern, that the screening criteria required notice-and-comment rulemaking, that the rule was applied retroactively, and that MSHA's review process violated due process and was arbitrary and capricious. Judge Margaret A. Miller rejected those arguments under controlling Commission precedent and found that MSHA followed its procedures, reasonably considered the mine's corrective-action plan, and permissibly considered earlier nonfinal citations. She held that the repeated serious violations showed disregard for miner safety and established both alleged patterns. The Judge granted partial summary decision to the Secretary and upheld the notice, while leaving the validity of one related section 104(e) withdrawal order for later resolution.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(e); 30 C.F.R. §§ 104.1 and 104.2
• Outcome: Pattern of Violations Written Notice No. 7219153 was upheld, but one related withdrawal-order violation remained unresolved.
• Subsequent review: The consolidated case later reached Commission review in weva-2014-395-r-commission.
• Key point: Recurrent S&S violations involving related serious hazards can establish a pattern when MSHA follows its review procedures and reasonably addresses mitigating evidence.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

November 3, 2015

POCAHONTAS
COAL COMPANY, LLC,

Contestant,

v.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION, (MSHA),

Respondent.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION, (MSHA),

Petitioner,

v.

POCAHONTAS
COAL COMPANY, LLC,

Respondent.

CONTEST
PROCEEDING

Docket
No. WEVA 2014-395-R

Order
No. 3576153; 12/19/2013

Mine: 
Affinity Mine

Mine
ID: 46-08878

CIVIL
PENALTY PROCEEDINGS

Docket
No. WEVA 2014-1028

A.C.
No. 46-08878-350475

Mine:
Affinity Mine

ORDER DENYING
POCAHONTAS’ MOTION

FOR SUMMARY
DECISION AND GRANTING

THE SECRETARY’S
MOTION FOR PARTIAL SUMMARY DECISION

Before:                        Judge
Miller

This case is
before me on a petition for penalty filed by the Secretary of Labor pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended,
30 U.S.C. § 815(c) (the “Mine Act” or “Act”).  One citation remains in this
docket, but the primary focus of the case and this decision is the Pattern of
Violations (“POV”) allegation.  Both parties filed motions for summary decision
and memoranda of law in support of those motions, and subsequently filed
responses in opposition.  The parties, during the course of a conference call,
acknowledged a preference for deciding the POV matter on the record, as there
is little, if any, dispute of fact.  The parties agreed to complete the final
portion of discovery and supplement the record so that a decision could be made
without a hearing. The final submissions were made on August 19, 2015, and the
parties agree that the case is ready for decision on the record.  A draft order
had been prepared when the Brody II decision was issued by the
Commission and the parties were given an opportunity to further supplement the
record, but both declined to do so.   Based upon the entire record in this case
and for the reasons that follow, I deny Respondent’s motion for summary
decision and I grant the Secretary’s motion.

On October 24, 2013, the Mine Safety and
Health Administration (“MSHA”) notified Pocahontas Coal Company, LLC,
(“Pocahontas”) that MSHA had determined that a pattern of

violations
existed at Pocahontas’s Affinity Mine and issued Written Notice No. 7219153
(hereinafter the “notice” or “NPOV”) pursuant to section 104(e)(1) of the Mine
Act.  Subsequently, MSHA issued multiple 104(e) withdrawal orders, which are at
issue in this proceeding.  The parties have settled all but one of the
citations, and those are addressed in a separate order approving partial
settlement.  In addition to the 104(e) withdrawal order, the validity of the underlying
NPOV remains at issue.

The parties’ motions address the issue
of the validity of the notice of pattern of violations (“NPOV”) only.  Both
parties assert in their motions that the material facts are not in dispute, and
each asserts that summary decision should be granted in its favor.  The
Secretary asserts that the citations and orders listed in the NPOV establish a
pattern of violations, and that issuance of the notice was a valid exercise of
his prosecutorial discretion.  Respondent argues that the notice is invalid
because the Secretary’s actions were arbitrary and capricious and violated due
process.  It further argues that the Secretary has failed to provide a
meaningful definition of “pattern” and therefore has failed to meet his burden
of proof with respect to the POV sanction.

The
Secretary’s Motion for Summary Decision

The Secretary argues that partial
summary decision should be entered in his favor and Written Notice No. 7219153
should be affirmed.  He asserts that he did not abuse his discretion in issuing
the NPOV.  Further, because the Secretary relied upon the citations and orders
listed in the NPOV in establishing that a pattern of violations existed, and
because those citations and orders are now final orders of the Commission,
there are no genuine issues as to any material fact.  Finally, the Secretary
argues that the citations and orders listed in the NPOV demonstrate the mine’s
tendency to commit S&S violations and establish that a pattern of violations
exists at the mine.

Given that the Commission has upheld the
pattern of violations rule, Brody Mining, LLC, 36 FMSHRC 2027 (Aug. 2014), the
Secretary argues that Pocahontas’s challenge to the rule is limited to, at most,
the question of whether the Secretary abused his discretion in the application
of the rule to this mine.  Sec’y Memo. 11.  The Secretary’s own POV regulations
require that he consider eight criteria listed in 30 C.F.R § 104.2 and provide
a written notice to the mine of the basis for the NPOV.  Sec’y Memo. 4; Sec’y
Supp. Br. 3.  The Secretary argues that since MSHA followed these procedures,
it did not abuse its discretion in issuing the NPOV.  Sec’y Memo. 12; Sec’y
Supp. Br. 3-4. 

The Secretary next asserts that the
violations considered by MSHA and listed in the notice provided to Pocahontas
demonstrate a pattern of violations.  The Secretary argues, relying on
dictionary definitions and judicial interpretations of other statutes, that a
pattern of violations “exists if the S&S violations are ‘ordered’ or
‘arranged’ in such a way that reflects an ‘external organizing principle’—the principle
that the operator has a tendency to commit to [sic] S&S violations[.]” 
Sec’y Memo. 7-8. He notes that legislative history indicates that Congress
intended a pattern to be “‘more than an isolated violation’ but ‘not
necessarily . . . a prescribed number of violations of predetermined standards.’”
 Id. at 8 (citing S. Rep. No. 95-181, at 32 (1977), reprinted in
Senate Comm. on Human Res., Subcomm. on Labor, Legislative History of the Federal
Mine Safety and Health Act of 1977 620 (1978)).  He further argues that,
given the Secretary’s rulemaking power under the Mine Act, if the Commission concludes
that the term “pattern” is ambiguous, it must defer to the Secretary’s
reasonable interpretation.  Id. at 8-9.

The NPOV purports to establish two patterns
of violations.  The first is based on alleged S&S violations that contribute
to roof and rib hazards, and identifies twenty-four S&S violations
occurring during a twelve-month period preceding issuance of the NPOV.  The
second involves emergency preparedness and escape way hazards and is based on
sixteen S&S violations occurring during the same time period.  The
Secretary argues that in both cases the conduct evidences a failure to prevent
reoccurrence of similar violations and a tendency towards repeated violations
that significantly and substantially contribute to safety and health hazards. 
Accordingly, he argues that a pattern of violations has been established and
the NPOV should be upheld.

Pocahontas’
Motion for Summary Decision

Pocahontas argues that the Secretary
cannot meet his burden of proving the validity of the pattern of violations, that
material facts are not in dispute, and, accordingly, that summary decision
should be entered in its favor and the NPOV should be vacated. 

First, Pocahontas argues that MSHA failed
to define a pattern of violations prior to imposing the sanction, and that
application of the POV statute to Pocahontas is therefore a violation of due
process.  Resp. Memo. 23.  Neither the Act nor the regulations define the term
“pattern,” but MSHA argues that the meaning is plain.  Pocahontas argues that
the meaning is not in fact plain, since MSHA supplements its dictionary
definition with judicial interpretations of other statutes, and since the MSHA District
Manager referred to the screening criteria when asked to provide a definition
of pattern at his deposition.  Id. at 26-28.  Pocahontas argues that a
vague definition coupled with judicial deference to MSHA’s reasonable
interpretation of the statute would give MSHA unfettered discretion to impose
the POV sanction on any operator.  Id. at 27.

Second, Pocahontas argues that MSHA
improperly applied the pattern of violations screening criteria as a binding
norm in violation of the Administrative Procedure Act (“APA”).  Id. at
28-29.  The APA requires that agency rules be promulgated in accordance with
notice and comment procedures.  Id. at 29 (citing 5 U.S.C. § 553).  Courts
to consider the issue have held that an agency policy is a “rule” subject to
notice and comment requirements if it operates as a binding norm.  Id.
at 30 (citing National Mining Ass’n v. Sec’y of Labor, 589 F.3d 1368,
1371 (11th Cir. 2009)).  Pocahontas argues that MSHA used the screening
criteria as a binding norm, since the POV Review Panel and District Manager did
not reexamine the enforcement history of the mine when deciding whether there
was a pattern of violations once the mine had met the screening criteria.  Id.
at 30-32. 

Third, Pocahontas asserts that MSHA failed
to provide adequate procedural due process protections in imposing the NPOV.  It
notes that it has a significant property interest in the continuing operation
of the mine, and that the NPOV gives MSHA broad authority to shut down the
mine.  Resp. Memo. 33-34. Pocahontas points to a number of potential defects in
the procedures surrounding 104(e) withdrawal orders: the chairman of the POV
Review Panel may have had a conflict of interest because of his position in
another division of MSHA; the panel did not consider all evidence regarding
violations, injuries, and accidents at the mine, and did not properly consider
the mine’s Corrective Action Plan; and there were no records kept of the panel
proceedings.  Id. at 36-37.  Pocahontas asserts that these defects
amount to a denial of due process that warrants vacating the NPOV.  Id.
at 40.

Fourth, Pocahontas argues that the current
POV rule was retroactively applied in violation of due process.  MSHA adopted a
new POV rule effective March 25, 2013.  Resp. Memo. 40.  Two-thirds of the
citations and orders in the NPOV issued to Pocahontas occurred prior to that
date.  Id. at 43.  Pocahontas argues that because the new POV rule
allowed MSHA to consider citations that were not final orders, whereas the old
rule did not, application of the new rule to old citations increased the mine’s
liability for past conduct, and thus was an impermissible retroactive
application.  Id. at 42.

Finally, Pocahontas argues that MSHA’s
actions in issuing the NPOV were arbitrary and capricious.  Specifically,
Pocahontas asserts that MSHA’s application of the screening criteria was
arbitrary and capricious in that it considered enforcement actions that were
later modified.  One of the screening criteria is whether twenty-five percent
of the mine’s S&S violations were a result of high negligence or reckless
disregard.  However, three of Pocahontas’s S&S violations for the twelve
month period at issue were ultimately modified from high to moderate
negligence, bringing the total number of high negligence violations to less
than twenty-five percent.  Pocahontas also argues that the POV Review Panel
acted arbitrarily and capriciously by failing to give appropriate weight to the
mine’s Corrective Action Plan (“CAP”) as a mitigating circumstance. Id.
at 45.  The Review Panel stated that the CAP was not a mitigating circumstance
because it was submitted too late.  Id. at 46.  Pocahontas counters that
there was no timeline provided to operators for when to submit a CAP, and that
a significant number of its citations were issued after the CAP had been
submitted.  Id. at 47.  Additionally, MSHA failed to conduct an
inspection of the mine after the CAP was approved, as is recommended in MSHA’s
Mitigating Circumstances Guidance.  Id. at 45.  Finally, Pocahontas
argues that the review panel’s reliance on two fatalities at the mine as
justification for the POV was arbitrary and capricious, given that the
fatalities were not related to the roof control and escape way citations listed
in the NPOV.  Id. at 47. 

Summary
Decision Standard

Commission
Procedural Rule 67 sets forth the grounds for granting summary decision as
follows: 

A motion for
summary decision shall be granted only if the entire record, including the
pleadings, depositions, answers to interrogatories, admissions, and affidavits,
shows:

(1)        That
there is no genuine issue as to any material fact; and

(2)        That
the moving party is entitled to summary decision as a matter of law.

29 C.F.R. §
2700.67(b).  The Commission has explained that summary decision is an
extraordinary procedure.  Energy West Mining Co., 16 FMSHRC 1414, 1419
(July 1994).  A material fact is one that is indispensable to the case, the
absence of which would render the case unsupported.  Black’s Law Dictionary
881 (5th ed. 1979).  In reviewing the record on summary decision the judge
should do so in the light most favorable to the non-moving party.  Hanson
Aggregates N.Y., Inc., 29 FMSHRC 4, 9 (Jan. 2007). 

Based
upon my review of the record, the briefs of the parties, and their attachments
and supplemental submissions, I find that there is not a dispute of material
fact and that summary decision is appropriate as a matter of law.

Facts Not in
Dispute

The
parties submitted numerous depositions and other documents to support the
motions filed by each.  The facts are drawn from a number of documents,
including briefs, depositions, affidavits and documentary evidence.[1] 
Based upon the submissions of both parties, I find the following material facts
are not in dispute:

1.      The POV
screening criteria was adopted by MSHA on March 25, 2013.  78 Fed. Reg. 5056
(Jan. 23, 2013); Jay Mattos Deposition Transcript, p. 27, ln. 18; p. 28, ln. 5
(Ex. 4).

2.      On September 16,
2013, MSHA began its screening of mines for a pattern of violations pursuant to
30 C.F.R. § 104 and MSHA’s Pattern of Violations Screening Criteria (2013) for
the twelve-month period ending August 31, 2013.  The screening covered all
14,600 mines under MSHA’s jurisdiction.  Letter from David Mandeville to Jack
Toombs (Oct. 24, 2013) (Ex. 3); U.S. Department of Labor, News Release: MSHA
Issues First POV Notices Under New Rule (Oct. 24, 2013) (Ex. 1).

3.      Based on a
computer generated report, MSHA concluded that the Affinity Mine met Criteria 1
of the POV screening criteria because for the applicable screening period (1) at
least fifty S&S citations and orders had been issued; (2) the degree of
negligence for at least twenty-five percent of the S&S citations and orders
issued was high negligence or reckless disregard; (3) the mine had at least 0.5
elevated citations and orders issued per 100 inspection hours; and (4) the
injury severity measure for the mine was greater than the overall industry
severity measure for mines of the same type and classification.  MSHA, Screening
Criteria Results for Pattern of Violations (Ex. 5).

4.      The POV
screening period was from September 1, 2012, through August 31, 2013.  MSHA, Screening
Criteria Results (Ex. 5); Jay Mattos Deposition Transcript, p. 71, ln. 15-18
(Ex. 4).  

5.      On September 17,
2013, Jay Mattos, in his capacity as Director of the Office of Assessments,
Accountability, Special Enforcement and Investigations (“OAASEI”), prepared a
memorandum for Kevin Stricklin (“Stricklin”), the Administrator for Coal Mine
Safety and Health, wherein he concluded that the Affinity Mine, Brody Mine, and
Tram Mine met the POV screening criteria for the selected period.  Memorandum
from Jay Mattos to Kevin Stricklin (Sept. 17, 2013) (Ex. 6).

6.      MSHA’s POV
procedures require that once a mine has been identified through the data
screening, the administrator must issue a memo to each district manager who has
mines in his district that meet the POV screening criteria.  District managers must
then review the mines for mitigating circumstances and report their findings in
a memo to the Administrator.  MSHA, Pattern of Violations (POV) Procedures
Summary 1 (Ex. 14).  

7.      In this
instance, the administrator for coal, Stricklin, sent a memo to David
Mandeville, the district manager, on September 19, 2013, notifying him that the
Affinity Mine had met the POV screening criteria.  David Mandeville Deposition
Transcript 25-26 (Ex. 7).  Mandeville contacted the owners of the Affinity
mine, Pocahontas Coal Company, and met with representatives from the mine on
September 20, 2013.  Mandeville Deposition at 29-30. 

8.      After receiving
notice from Mandeville that the mine was under consideration for the POV
notice, John Schroder, manager of the Affinity Mine, submitted a mitigating
circumstances explanation to MSHA.  Letter from John Schroder to David
Mandeville (Sept. 26, 2013) (Ex. 10); Mandeville Deposition at 54. 

9.      Mandeville
prepared and submitted to the POV Review Panel a Mitigating Circumstances
Determination Form.  The form addresses whether the mine was inactive, whether
there was a bona fide change in mine ownership, and whether there was an
approved CAP in place.  MSHA, Mitigating Circumstances Determination Form:
Affinity Mine (Ex. 11).

10.  MSHA procedures
require that the POV panel review the mitigating circumstances information
provided by the District Manager and make a recommendation to the Administrator
as to whether the mine should be excluded from POV notification due to
mitigating circumstances.  MSHA, POV Procedures Summary 1 (Ex. 14).

11.  In this
instance, the POV Review Panel consisted of Jay Mattos, the Director of the
Office of Assessments; Donald Foster, a District Manager in Metal/Non-Metal;
Brian Goepfert, Chief of the Safety Division in Metal/Non-Metal; Thomas Light,
a District Manager in Coal; and Jim Langley, an Acting District Manager in Coal. 
Mattos Deposition at 77, ln. 14 (Ex. 4). 

12.  The stated
purpose of the POV Review Panel was to determine “whether the [subject mines]
should be excluded from POV notification or have POV notifications postponed
due to mitigating circumstances.” Memorandum from Jay Mattos to Kevin Stricklin
re: Pattern of Violations Review Recommendations 1 (Oct. 22, 2013) (Ex. 9); see
also MSHA, POV Procedures Summary 1.

13.  The information
reviewed by the POV Review Panel included the number of citations and orders
issued during the relevant period of time; the S&S issuance rates during
that time; the Mitigating Circumstances Determination form; the Corrective
Action Program for Affinity; the status of the mine; legal identity filings;
and accident and injury information.  Mattos Deposition at 82-83 (Ex. 4).  

14.  The POV Review
Panel held deliberations involving the three mines that had met the screening
criteria on October 16, 17, 18, and 21, 2013. POV Review Panel Recommendations 1
(Ex. 9); Mattos Deposition at 75-76 (Ex. 4).

15.  MSHA procedures
provide that a possible mitigating circumstance that could justify a decision
not to issue or to postpone the issuance of a POV Notice is an operator’s
approved and implemented Corrective Action Program (CAP) accompanied by
positive results in reducing S&S violations. MSHA, POV Procedures Summary 1
(Ex. 14).

16.  Pocahontas
originally submitted its proposed CAP to MSHA’s District 4 office for approval
on August 6, 2013.  It submitted a revised CAP on August 14, 2013.  The revised
version was approved by the District Manager, Mandeville, on September 23,
2013. Letter from John Schroder to David Mandeville (Sept. 26, 2013) (Ex. 10);
Mandeville Deposition at 42-45 (Ex. 7); Letter from David Mandeville to Jack
Toombs (Sept. 23, 2013) (Ex. 15).

17.  The POV Mitigating
Circumstances Guidance provides that “MSHA may be less likely to find that a
CAP justifies postponing a POV Notice if a mine met the quantitative criteria
for a POV for several months before submitting a CAP.” MSHA, Mitigating
Circumstance Guidance 5 (Ex. 12).

18.  The POV Review
Panel used the Pattern of Violations regulations to guide its deliberation
process.  POV Review Panel Recommendations 3 (Ex. 9).

19.  The POV Review
Panel concluded that Affinity’s approved CAP was not a sufficient mitigating
circumstance because the mine did not implement the CAP until six months after
two fatalities occurred at the mine, and because the number of S&S
violations increased in the last two months of the review period.  The panel therefore
recommended that a POV notice be issued to the Affinity Mine.  It submitted
this recommendation to Kevin Stricklin.  POV Review Panel Recommendations 6-7
(Ex. 9).

20.  A team of
inspectors from the MSHA District Office and attorneys from the Regional Solicitor’s
Office also conducted a “qualitative review” of the compliance history of the
mine, including its history of violations and documentation relating to those
violations.  Sabian Scott Van Dyke Deposition 36 (Ex. 32). 

21.  The selection of
citations and orders to include in the NPOV was made by attorneys in the
Solicitor’s Office.  Kevin Stricklin Deposition Transcript 46-48 (Supp. Ex. A);
Declaration of Sabian Scott VanDyke ¶¶ 26-29 (Ex. 37).

22.  In making this
selection, the attorneys discussed the evidentiary value of specific citations
with inspectors in the field office who had inspected the mine.  They relied in
part on citation files and notes compiled by Field Office Supervisor Sabian
Scott VanDyke.  Declaration of Sabian Scott VanDyke ¶¶ 17, 22, 26-28 (Ex. 37).

23.  The citations
and orders selected were subsequently presented to Administrator Stricklin for
inclusion in the NPOV.  VanDyke Declaration ¶ 28 (Ex. 37); Kevin Stricklin
Deposition Transcript 41-46 (Ex. 32). 

24.  Stricklin made
the ultimate decision whether to issue the NPOV.  He reviewed the initial
screening documents, the memo prepared by the POV Review Panel, and the draft
notice detailing the two sets of patterns alleged at this mine.  While he was
not involved in the initial determination of which citations and orders were to
be included in the final notice, he reviewed and had discretion to accept the
patterns as listed.  Stricklin Deposition at 12-14, 29-30, 41-46 (Ex. 32). 

25.  Based on his
review of the information submitted to him, Stricklin instructed the District
Manager to issue the notice.  The notice was issued by David Morris as Acting
District Manager because Scott Mandeville was on vacation.  Mandeville
Deposition at 59-60 (Ex. 7); David Morris Deposition Transcript 25 (Ex. 8); Stricklin
Deposition at 12-14, 29-30, 46 (Ex. 32).

26.  Morris received
the instruction to issue POV Notice No. 7219153 in a phone call with Stricklin
and Charlie Thomas on October 24, 2013.  Morris Deposition 25-27 (Ex. 8). 

27.  Neither
Mandeville nor Morris was involved in selecting the enforcement actions
described in POV Written Notice Number 7219153.  Mandeville Deposition at 59 (Ex.
7); Morris Deposition at 52-53 (Ex. 8).

28.  Morris delivered
POV Written Notice No. 7219153 to the mine on October 24, 2013, along with a
letter signed by Morris on Mandeville’s behalf explaining the significance of
the notice.  Morris Deposition at 50 (Ex. 8); POV Written Notice No. 7219153 (Ex.
2); Letter from David Mandeville to Jack Toombs (Oct. 24, 2013) (Ex. 3).

29.  POV Written Notice
No. 7219153 lists forty-two enforcement actions (citations and orders) and
alleges two discrete patterns of violations. Because six enforcement actions
(8149059, 8156134, 8155047, 8155074, 7276508 and 9000362) are listed as
contributing to both patterns, the total number of enforcement actions is
thirty-six. The enforcement actions listed were issued from September 9, 2012,
through August 13, 2013.  POV Written Notice No. 7219153 (Ex. 2).

30.  The alleged
patterns set forth in POV Written Notice Number 7219153 are violations that
contribute to roof and rib hazards and violations that contribute to emergency
preparedness and escape way hazards. POV Written Notice No. 7219153 (Ex. 2).

31.  Two of the
citations listed in the NPOV were subsequently modified to non-S&S, 104(a)
citations.  The thirty-four remaining citations and orders listed in the NPOV,
all of which are now final orders of the Commission, are S&S violations.

I.                  
The
Secretary’s POV Regulations

Pocahontas argues that the Secretary’s
regulations failed to provide fair notice to regulated parties, and that the
NPOV should therefore be vacated on due process grounds.  Specifically,
Pocahontas argues that the Secretary failed to define a “pattern of violations”
before imposing the sanction on the Affinity Mine.  It makes a similar argument
in its Supplemental Memorandum of Law, contending that the Secretary’s failure
to define a pattern prevents him from proving that a pattern existed.  Resp.
Supp. Memo. at 15.  The Commission recently addressed this issue in Brody
Mining, LLC, 37 FMSHRC ___, No. WEVA 2014-82-R, slip op. at 9-13 (Sept. 29,
2015) (“Brody II”), rejecting the argument that the Secretary had failed
to provide an adequate definition of “pattern.”  I therefore hold that Pocahontas
is not entitled to summary judgment on this ground.

The Mine Act requires that “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.” 
30 U.S.C. § 814(e)(1).  If, within 90 days after the notice is issued, an inspector
finds a significant and substantial (S&S) violation at the mine, MSHA is
directed to issue a withdrawal order under section 104(e) of the Act.  Id. 
The mine will then be subject to a withdrawal order for any subsequent S&S
violation until an inspection of the entire mine reveals no further S&S
violations.  30 U.S.C. §§ 814(e)(2), (3).

The Mine Act does not define the term “pattern
of violations,” nor is there a definition provided in the Secretary’s
regulations.  The Commission decided in Brody II, however, that the
definition submitted by the Secretary in litigation, together with the
Secretary’s implementing regulations for the POV, established a sufficiently
clear definition of “pattern” consistent with the purpose of the Act.  Brody
II, slip op. at 12.  The Commission noted that the legislative history of
the Mine Act indicates that while “a pattern is more than an isolated
violation, pattern does not necessarily mean a prescribed number of violations
of predetermined standards nor does it presuppose any element of intent or
state of mind of the operator.”  Brody II, slip op. at 9 (citing 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, at 621 (1978)).  The Commission thus found that a relatively
flexible definition of pattern was appropriate, whereby “[n]o particular number
of S&S violations is required.”  Id. at 11.

The Commission’s decision is binding on
the case at hand.  Therefore, I find that the Secretary did not violate the due
process rights of Pocahontas by failing to provide a formal definition of
“pattern” in his regulations, and that the absence of such a definition does
not preclude the Secretary from proving a pattern of violations. 

II.               
The
Secretary’s POV Procedures

The
Secretary implemented the most current rule regarding pattern of violations in
March 2013.  78 Fed. Reg. 5056, 5056 (Jan. 23, 2013).  The rule provides that
at least once each year, MSHA will review the compliance and accident, injury,
and illness records of mines to determine if any meet the POV screening
criteria.  30 C.F.R. § 104.2.  The standard establishes eight factors for MSHA
to review in deciding whether a mine has a pattern of violations.[2]  The first
six of the factors relate to enforcement actions against the mine, and the last
two involve additional information about health and safety problems at the mine
and mitigating circumstances.  Id.  The standard also refers parties to
the MSHA website for the “specific pattern criteria.”  10 C.F.R. § 104.2(b). 
The website provides two sets of screening criteria that will trigger
consideration for an NPOV, each of which is based on the number and severity of
safety and health violations at the mine.  Mine Safety and Health
Administration, Pattern of Violations Screening Criteria (2013), www.msha.gov/POV/POVScreeningCriteria2013.pdf
[hereinafter MSHA, POV Screening Criteria].

A
computerized screening was done in September 2013 of the 14,600 mines in MSHA’s
jurisdiction for the period from September 1, 2012, through August 31, 2013. 
Three mines, including Affinity Mine, met one of the screening criteria for
that period.  In accordance with MSHA procedures, the MSHA Administrator for
Coal, Kevin Stricklin, notified the district manager, David Mandeville, that
Affinity Mine had met the screening criteria and was being considered for the
POV.  Mandeville in turn notified and met with representatives from the mine. 
The mine provided a written response outlining why it should not receive an
NPOV.  The letter described the mine’s Corrective Action Program and measures
it had taken to increase safety after two fatalities occurred in February 2013. 
The mine did not dispute any of the data concerning the number and severity of
citations at the mine from the MSHA data system, but rather submitted potential
mitigating factors.  After meeting with mine representatives and reviewing the letter,
Mandeville completed a mitigating factors form and submitted it to the POV Review
Panel.  The panel, chaired by Jay Mattos, Director of the Office of Assessments,
reviewed the
citations and orders issued during the relevant period of time, accident and
injury information, and mitigating circumstances including the Corrective
Action Program.  It submitted
a memo with its findings to Stricklin.  Around the same time, the district
office and the regional Solicitor’s office worked together to review the
citations and orders contained in the initial screening and compiled two lists
of citations that constituted two separate patterns.  Stricklin reviewed the
findings of the panel and the proposed pattern lists and determined that the
mine should receive an NPOV.  Stricklin sent the notice to the district office,
along with a cover letter, to be presented to the mine. 

Pocahontas makes
several challenges to the Secretary’s procedures in issuing the NPOV, arguing
that the Secretary cannot meet his burden of proving the validity of the notice,
and, accordingly, that summary decision should be entered in favor of the mine
and the NPOV vacated.  Specifically, Pocahontas alleges that MSHA improperly
applied the screening criteria as a binding norm and disregarded Pocahontas’s
due process rights in imposing the POV sanction and retroactively applying the
rule to citations and orders issued before the rule went into effect.  The
Commission addressed most of these issues in Brody Mining, LLC, 36
FMSHRC 2027 (Aug. 2014) (“Brody I”).  The remaining challenges I find to
be without merit.  I therefore deny Pocahontas’s motion for summary judgment on
these grounds. 

a.      Notice &
Comment Procedures

Section 104.2 of the POV rule describes
the Secretary’s criteria for a pattern of violations and states that “MSHA will
post the specific pattern criteria on its Web site.”  30 C.F.R. § 104.2.  The
criteria posted on the website are the numeric “screening criteria” that MSHA
used to generate the computer report identifying three mines for consideration
for a POV.  See Ex. 6.  Pocahontas argues that MSHA applied the
screening criteria as a “binding norm,” and that the criteria were therefore subject
to the requirements for notice and comment rulemaking under the Administrative
Procedure Act (“APA”).  See 5 U.S.C.§ 553. 

The Commission addressed this argument
in Brody I, rejecting the contention that the screening criteria were applied
as a binding norm.  36 FMSHRC at 2047-51.  The Commission explained that “the
screening criteria assist MSHA in ascertaining how it will ‘concentrate
enforcement efforts’ regarding POV enforcement.” Brody I, 36
FMSHRC at 2049 (quoting Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1056
(D.C. Cir. 1987)).  Rather than automatically singling out mines to receive the
NPOV, the screening criteria were used as the initial step in a process of
further review.  Id.  The Commission thus concluded that the criteria
were a “general statement of policy” rather than a “legislative rule,” and so did
not require notice and comment rulemaking procedures.  Id. at 2049-51.  The
Commission’s decision is a binding precedent, and therefore I find that MSHA
did not violate the APA in establishing its screening criteria without using
notice and comment rulemaking.

b.      Retroactivity 

MSHA’s current POV rule went into effect
on March 25, 2013.  78 Fed. Reg. 5056, 5056 (Jan. 23, 2013).  One significant
change in the new rule is that it allows MSHA to consider violations that are
not yet final orders when determining whether a mine has a pattern of
violations; the previous POV rule limited MSHA to considering final orders.  Id.
at 5056; Brody I, 36 FMSHRC at 2030.  MSHA applied the new POV rule in
issuing the NPOV to Pocahontas.  Thus, some of the violations contained in the
NPOV were not final orders when the NPOV was issued.  Moreover, some of those
violations occurred before the effective date of the new POV rule.  Pocahontas
argues that the inclusion of these non-final orders on the NPOV increases the
mine’s liability for past conduct, and is thus an impermissibly retroactive
application of the new POV rule. 

In
Brody I, the Commission found that application of the current rule to
violations occurring before the effective date of the rule was not
impermissibly retroactive.  36 FMSHRC at 2051-53.  The Commission rejected the argument
that application of the rule increases the mine’s liability for past conduct.  Id.
at 2052.  It explained that “section 104(a) may be analogized to ‘repeat
offender’ provisions under which an enhanced penalty is not an ‘additional
penalty for the earlier crimes,’ but rather was a ‘stiffened penalty for the
latest crime, which is considered to be an aggravated offense because [it is] a
repetitive one.’”  Id. at 2052 (quoting Gryger v. Burke, 334 U.S.
728, 732 (1948)) (alteration in original).  The Commission also noted that the
current rule does not impair vested rights that the mine held under the prior
rule, because the rule does not affect the mine’s right to contest the
citations listed in the NPOV or the assessed penalties.  Id.  I apply
the same reasoning to the case at hand and find that the inclusion in the NPOV
of non-final citations and orders issued prior to the effective date of the new
POV rule did not amount to a retroactive application of the rule. 

c.       Due Process

Pocahontas additionally argues that “the
‘ad hoc’ process utilized by MSHA to impose the POV sanction in respect of the
Affinity Mine evades a plethora of basis [sic] due process procedural protections.” 
Resp. Memo. 39.  The mine lists numerous perceived defects in the procedure
through which the NPOV was issued, including that the POV Review Panel chairman
may have had a conflict of interest; that the panel failed to review all the
relevant information, and failed to give adequate weight to the mine’s
Corrective Action Program; that the panel’s deliberations were too brief; and
that there were no records kept of the panel’s deliberations.

The
Commission addressed a due process challenge to MSHA’s current POV procedures
in Brody I, 36 FMSHRC at 2041-47.  It applied the Supreme Court’s test
for evaluating procedural due process protections, which balances (1) the
private interest affected, (2) the risk of erroneous deprivation through the
procedures used and the value of additional procedural safeguards, and (3) the
government’s interest.  Id. at 2042 (citing Mathews v. Eldridge,
424 U.S. 319, 335 (1976)).  The Commission found that a mine operator has a
significant property interest in the continued operation of the mine, though it
noted that the impact does not occur when the NPOV is issued, but rather when
the mine remains “on the ‘chain’ of withdrawal liability until the chain is
broken by a clean inspection.”  Id.  On the other hand, MSHA has a
“paramount” interest in protecting public health and safety “which justifies
summary administrative action.”  Id. (quoting Hodel v. Va. Surface
Mining & Reclamation Ass’n, 452 U.S. 264, 300 (1981)).  With regard to
the second factor, the Commission held that MSHA’s pre- and post-deprivation
procedures adequately addressed the risk of erroneous deprivation.  Id.
at 2044-47.  The protections it considered were that MSHA provides an online
monitoring tool that gives operators notice that they might be subject to
consideration for an NPOV; operators may submit mitigating circumstances to the
District Manager at any time; operators may implement a Corrective Action
Program (“CAP”) to reduce S&S violations at any time; MSHA reviews
mitigating circumstances, the CAP, and other information before issuing the
notice; operators may request expedited hearings of S&S citations and
orders if they are approaching consideration for an NPOV; and after the NPOV is
issued, operators may seek temporary relief from section 104(e) withdrawal
orders or expedited proceedings of contests of those orders.  Id. at
2045-46.

The
procedures that the Commission found in Brody I to adequately safeguard
the mine’s property interest were all applied here.  Pocahontas had access to
the online monitoring tool for POVs.  It had an opportunity to implement a CAP
and submit mitigating circumstances, both of which it did.  MSHA reviewed the
CAP and the mine’s mitigating circumstances before issuing the notice. 
Finally, Pocahontas had access to expedited proceedings for the citations
underlying the NPOV and for subsequent withdrawal orders.  I do not find that
any of the procedural complaints cited by Pocahontas, including the affiliations
of panel members, length of the review panel proceedings, and recordkeeping,
undermined these procedures.  While Pocahontas argues that the panel did not
give adequate weight to the mine’s CAP, there is no dispute that the panel
reviewed and rejected the CAP as a mitigating circumstance.  Statement of Facts
¶ 19.  Pocahontas’s argument is a substantive disagreement with MSHA and not
relevant to procedural due process.  Thus, I hold that MSHA’s procedures
satisfied due process. 

III.            
The
Pattern of Violations

The Secretary argues that partial
summary decision should be entered in his favor and Written Notice No. 7219153
should be affirmed.  He argues that the citations and orders listed on the NPOV
constitute two patterns of violations, the first relating to roof and rib
hazards, and the second relating to escape way and emergency preparedness
hazards.  He notes that those citations and orders are now final orders of the
Commission, and thus argues that he has established a pattern of violations. 

a.      Abuse of
Discretion

The Commission has not articulated the
exact extent to which the agency’s actions in issuing the NPOV are subject to
judicial review.  The Secretary argues that his decision to issue the NPOV is
an exercise of his prosecutorial discretion and therefore subject only to
limited judicial review.  Sec’y Supp. Br. 2-4.  In Brody II, the Commission
similarly commented that “evidence should not be developed, nor should
discovery be permitted, regarding MSHA’s prosecutorial discretion in issuing a
POV notice.”  Brody II, slip op. at 16.  Under that system, due process
review of agency procedures would still be available and the POV itself would
be reviewed de novo by the judge, but the agency’s decision-making process
would not be otherwise examined.  Pocahontas argues, however, that the agency’s
actions in issuing the NPOV should be reviewed for whether they were arbitrary
and capricious.  Resp. Supp. Memo. 8-10. As explained below, I find that MSHA’s
actions should be reviewed for abuse of discretion, but find that the agency did
not abuse its discretion here.[3] 

The Commission
reviews agency actions under the arbitrary and capricious or abuse of
discretion standard in a number of contexts, including the promulgation of
regulations, approval of plans, and issuance of imminent danger and failure to
abate orders.  See e.g. Twentymile Coal Co., 30 FMSHRC 736, 748 (Aug.
2008) (applying arbitrary and capricious standard of review to Secretary’s
approval of an emergency response plan); Emerald Coal Res., LP, 29
FMSHRC 956, 966 (Dec. 2007) (same); Brody I, 36 FMSHRC at 301-04
(reviewing the validity of the Secretary’s POV rule under an arbitrary and
capricious standard); Energy W. Mining Co., 18 FMSHRC 565, 569 (Apr.
1996) (reviewing an inspector’s decision to issue a failure to abate order for
abuse of discretion); Pattison Sand Co., LLC, 688 F.3d 507, 512-13 (8th
Cir. 2012) (reviewing issuance of section 103(k) order under arbitrary and
capricious standard); Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2164 (Nov. 1989) (“R&P Coal”) (reviewing inspector’s issuance
of imminent danger order for abuse of discretion).  In these cases, the nature
of MSHA’s action makes it appropriate for the judge to defer to the agency’s
judgment.  See e.g. R&P Coal, 11 FMSHRC at 2164 (“Since he must act
immediately, an inspector must have considerable discretion in determining
whether an imminent danger exists.”); Energy W. Mining, 18 FMSHRC at 269
(“The Act does not address the extent of an inspector’s inquiry in making the
determination of whether abatement time should be extended.”).  In the plan
approval context, the Seventh Circuit has explained that the deferential
arbitrary and capricious standard is appropriate because plan approval is
essentially a policymaking activity, an area in which the Secretary has special
expertise that the Commission lacks.  Mach Mining, LLC v. Secretary of Labor,
Mine Safety & Health Administration, 728 F.3d 643, 646-58 (7th Cir. 2013)
(analogizing plan approval to rulemaking, which is subject to deferential
review, and contrasting this with enforcement actions, which are subject to
“full review on the merits”).

Nevertheless,
the Commission has also reviewed select enforcement decisions for abuse of
discretion, including the Secretary’s decision to cite an operator for its
independent contractor’s violations.  See Twentymile Coal Co., 27 FMSHRC
260, 265-66 (Mar. 2005).  In these cases, the Secretary’s action is subject to
heightened rather than deferential review: the Secretary must justify both that
the citation is valid and that he did not abuse his discretion in issuing it. 
In this case of first impression, I find that this two-level form of review,
one for the issuance of the notice and a separate for the pattern itself, is
appropriate in the case of the NPOV.  Notably, MSHA has issued detailed
procedures governing its own enforcement decision-making in the POV context. 
The Supreme Court has held that, “Where the rights of individuals are
affected, it is incumbent upon agencies to follow their own procedures. This is
so even where the internal procedures are possibly more rigorous than otherwise
would be required.”  Morton v. Ruiz, 415 U.S. 199, 235 (1974).  In view
of the discretion
available to the Secretary in deciding which mines are subject to the NPOV and
the seriousness of the penalty at stake, I find that it is appropriate to
examine whether the Secretary followed his own procedures or otherwise abused
his discretion in issuing the notice.

The Commission articulated the scope of
review under the arbitrary and capricious standard in Twentymile Coal:

The scope of
review under the arbitrary and capricious standard is narrow and a court is not
to substitute its judgment for that of the agency.  Nevertheless, the agency
must examine the relevant data and articulate a satisfactory explanation for
its action including a rational connection between the facts found and the
choice made. In reviewing the explanation, we must consider whether the
decision was based on a consideration of the relevant factors and whether there
has been a clear error of judgment. Normally, an agency rule would be arbitrary
and capricious if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.

30
FMSHRC 736, 754-55 (quoting Motor Vehicle Mfr’s Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). 

I
find that MSHA followed all statutory, regulatory, and internal procedural
requirements and considered all relevant information, and that therefore the
Secretary’s actions in issuing the notice were not arbitrary or capricious. 

The
first stage in MSHA’s procedures for issuing the NPOV is a computerized review
of the enforcement data of every mine subject to MSHA’s jurisdiction.  30
C.F.R. § 104.2; MSHA, POV Screening Criteria; MSHA, POV Procedures Summary 1
(Ex. 14).  MSHA has posted two sets of screening criteria on its website. 
MSHA, POV Screening Criteria.  If a mine meets either set of criteria, it is selected
for further consideration for an NPOV.[4]
 Id.  Affinity Mine was selected under the first set of criteria: it had
at least 124 S&S citations or orders issued during the twelve-month period
at issue; twenty-five percent of those citations and orders had a degree of
negligence of high or reckless disregard; 1.49 elevated citations or orders
were issued per 100 inspection hours; and the mine’s Injury Severity Measure of
5,665.03 was greater than the industry average of 438.85.  MSHA, POV Screening
Results (Ex. 5). 

Pocahontas takes issue with the
application of the criterion regarding high negligence citations.  Resp. Mot.
44-45.  It notes that three of the mine’s citations from the twelve-month
period were eventually modified from high negligence to moderate negligence,
bringing the total below the twenty-five percent necessary for the mine to meet
the screening criteria.  MSHA, POV Screening Criteria.  It thus argues that
MSHA’s actions were arbitrary and capricious because the agency did not have
adequate factual support for its decision.  Resp. Memo. at 45 (citing Twentymile
Coal, 30 FMSHRC at 753-54). 

The
Commission addressed a similar argument in Brody I, in which it held
that MSHA was not arbitrary and capricious in relying on non-final S&S
citations to establish a pattern of violations.  Brody I, 36 FMSHRC at
2038-40.  The Commission noted that “[i]f 20%, or even 33%” of the citations
listed on Brody’s NPOV were to “lose their S&S designation after
litigation, it would still leave a significant number of S&S violations on
which a pattern of violations could be found.”  Id. at 2039.  Like the
S&S analysis, there is no requirement in the statute or regulations that
twenty-five percent of the mine’s violations be high negligence.  I thus find
Pocahontas’s argument unpersuasive.  Given that the mine does not dispute the
substance of the screening criteria or the accuracy of MSHA’s enforcement
records, I therefore find that MSHA did not abuse its discretion at this step
of the POV procedure. 

The second stage in MSHA’s POV
procedures is a review of mitigating circumstances by the POV Review Panel.  MSHA,
POV Procedures Summary 1 (Ex. 14); see also 30 C.F.R. § 104.2.  In the
third and final stage, the Administrator for Coal considers the recommendations
of the panel along with the mine’s record of violations and decides whether to
issue the notice.  MSHA’s internal policies indicate that potential mitigating
circumstances to be considered by the panel and the administrator include an
approved and implemented Corrective Action Program (CAP); a bona fide change in
mine ownership resulting in improvements in compliance; and the mine becoming
inactive. MSHA, Mitigating Circumstances Guidance 2 (Ex. 12); see also 78
Fed. Reg. 5056, 5063. Here, the district manager gathered information from the
mine regarding these factors prior to issuing the NPOV, and the POV Review
Panel addressed them in its recommendations to Kevin Stricklin.  POV Review
Panel Recommendations 4-7 (Ex. 9).  Pocahontas argues, however, that the panel
was arbitrary and capricious in its consideration of the mine’s CAP.  Resp.
Memo. 45. 

Pocahontas submitted its proposed CAP on
August 6, 2013, and submitted a revised version on August 14, 2013.  MSHA
approved the revised CAP on September 23, 2013.  The POV Review Panel reviewed the
CAP, but concluded that it was not a sufficient mitigating factor because the
mine did not implement the CAP until six months after the two fatalities had
occurred at the mine.  The panel also noted that the number of S&S
violations increased in the last two months of the review period.  Pocahontas
argues that the panel should not have rejected the CAP as a mitigating
circumstance based on its date of submission: the mine points out that MSHA has
not provided guidance to operators as to when a CAP should be implemented, and
that the plan for Affinity was submitted before the mine actually met the POV
screening criteria.  Resp. Memo. 47.  Pocahontas also argues that MSHA failed
to conduct a complete inspection of the mine after the CAP was implemented.  Id. 
MSHA’s Mitigating Circumstances Guidance provides that “In rare cases,
postponement of a POV Notice could be appropriate where an operator has
implemented a CAP in a timely fashion, but there has been insufficient time for
MSHA to conduct an inspection to evaluate the CAP’s effectiveness in reducing
S&S violations.”  MSHA, Mitigating Circumstances Guidance 3 (Ex. 12).  The
Secretary contends that the fatalities at the mine put the mine on notice that
it had a safety problem, and that it should have implemented a CAP sooner than
six months after the fatalities.  POV Panel Recommendations 5-7 (Ex. 9).  In
other words, the CAP was not implemented “in a timely fashion” and so did not
justify postponing the NPOV.

I
find MSHA adequately considered the CAP as a mitigating circumstance, and that
it was not arbitrary and capricious in finding that the CAP did not justify
postponing the NPOV.  As explained above, when deciding whether an agency’s
actions are arbitrary and capricious, a court looks to whether the agency has “examine[d] the
relevant data and articulate[d] a satisfactory explanation for its action
including a rational connection between the facts found and the choice made.”  Motor
Vehicle Mfr’s Ass’n, 463 U.S. at 43.  I find that MSHA has done so here. 
The agency considered the mine’s record of violations and injuries over a
twelve-month period and its efforts to implement a CAP.  The agency was well
within its discretion to conclude that the CAP implemented at the end of the
review period did not mitigate the mine’s record of violations over the past
year.  MSHA was under no obligation to wait and see whether the CAP would
reduce the number of violations at the mine.  It was within the agency’s
discretion to move forward with the NPOV as a means of addressing safety issues
at the mine.     

Pocahontas
additionally argues that the agency was arbitrary and capricious in considering
the two fatalities at the mine as part of its decision to issue the NPOV, given
that the fatalities were unrelated to the issues of roof and rib control and escape
way hazards described in the NPOV.  Resp. Memo. 47-48. It argues that the
agency disregarded the CAP because it perceived that, in view of the
fatalities, Pocahontas was a “bad actor.”  Id. at 3.  I find this
argument to be without merit.  The agency primarily considered the two
fatalities with respect to the timeline for implementing a CAP, finding that
the fatalities put the operator on notice of safety issues at the mine and the
need for corrective action.  This information was relevant as to whether there
were mitigating circumstances at the mine, and the agency was right to consider
it.  Therefore, the agency did not abuse its discretion.

b.      The Pattern

In order to succeed on summary judgment,
the Secretary must prove that a pattern of violations existed at the Affinity
Mine.  The Act requires that, when an operator has a pattern of S&S violations
of mandatory health or safety standards, the Secretary shall issue written
notice to the operator that a pattern exists.  30 U.S.C. § 814(e)(1).  The Act
does not define the term “pattern of violations.”  Rather, as explained in Brody
I, Congress has “expressly delegated to the Secretary responsibility for
determining when a pattern of violations exists.”  Brody I, 36 FMSHRC at
2036.  While the Secretary’s regulations identify criteria that MSHA must
consider when determining whether an operator has engaged in a pattern of
violations, they do not provide a formal definition of a pattern of violations,
either.  30 C.F.R. §§ 104.1-104.2. 

The Commission, however, recently
addressed the meaning of a “pattern of violations” in Brody II:

[A] “pattern of
violations” under section 104(e) is established by an inspection history of recurrent
S&S violations of a nature and relationship to each other such that the
violations demonstrate a mine operator’s disregard for the health or safety of
miners. No particular number of S&S violations is required in order 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
eight criteria listed in section 104.2(a) are relevant to the determination of
whether a pattern of violations exists. 

Brody
II,
slip op. at 11.  The criteria in § 104.2(a) are the record of serious
enforcement actions at the mine, including S&S citations, orders for
failure to abate an S&S violation, unwarrantable failure citations and
orders, imminent danger orders, and withdrawal orders for training violations;
other enforcement measures that have been applied at the mine; other
information demonstrating a serious safety or health management problem at the
mine, such as accident, injury, and illness records; and mitigating
circumstances.  30 C.F.R. § 104.2(a).  The preamble to the POV regulations
indicates that “other information that demonstrates a serious safety or health
management problem” can include evidence of the mine operator’s lack of good
faith in correcting the problem that resulted in repeated S&S violations;
repeated S&S violations of a particular standard or standards related to
the same hazard; knowing and willful S&S violations; citations and orders
issued in conjunction with an accident; and S&S violations that contribute
to accidents and injuries.  78 Fed. Reg. 5056, 5062 (Jan. 23, 2013); see
also Brody II, slip op. at 11 n.17.  The Commission in Brody II also
mentioned eight additional factors proposed by the Secretary that “may be
helpful interpretive tools” in deciding whether a pattern exists: the nature
and seriousness of the hazards; the timing of the violations; the location of
the violations; trends with regard to injuries and accidents; involvement of
management personnel; the standards violated; the operator’s response to the
violations; and “any other factor that is revealed by the evidence to establish
a mode or series of acts that are recognizably consistent.”  Id. at 12
(internal quotations admitted).

The Secretary argues that the citations
and orders listed in the NPOV establish two patterns of violations, the first based
on S&S violations that contributed to roof and rib hazards, and the second
based on S&S violations that contributed to emergency preparedness and escape
way hazards.  The NPOV as issued listed thirty-six S&S citations and
orders.  Two of those citations, Nos. 8155043 and 7276516, were subsequently
modified to non-S&S; I rely on the remaining thirty-four citations and
orders in my analysis of whether a pattern exists.  The remaining violations are
twenty-four citations and orders involving roof and rib hazards and sixteen
involving emergency preparedness and escape way hazards.  Six of the violations
involve both types of hazard.  All of these violations occurred within a
twelve-month period and are now final orders.  I find that that these citations
and orders demonstrate the operator’s disregard for the safety of miners and,
therefore, establish a pattern of violations.

I
first address the alleged pattern of roof and rib support violations.  A key
factor in the POV analysis is the mine’s enforcement record of serious
violations, which the Secretary has addressed in the NPOV.  See Brody II,
slip op. at 11; 30 C.F.R. § 104.2(a)(1)-(5).  The NPOV lists twenty-four S&S
citations and orders involving roof and rib hazards.  Ex. 2.  These include
four violations of the mine’s roof control plan; one failure to identify a
dangerous roof condition in a pre-shift examination; two instances of a generally
unsupported or loose roof; one instance of loose ribs; seven unsupported brows;
eight unsupported kettle bottoms; and one excessively wide crosscut.  Sec’y
Mot. 13-21. Twenty-two of these violations were cited as S&S violations
under section 104(a) of the Mine Act, and the remaining two were cited in
unwarrantable failure orders under section 104(d)(2).  These violations are
indicative of an obvious and recurring problem with roof and rib support at the
mine. 

In addition to the mine’s enforcement
record, the Secretary may also produce “[o]ther information that demonstrates a
serious safety or health management problem at the mine.”  30 C.F.R. §
104.2(a)(7).  A table of accidents and injuries at the mine during the review
period was included in the memo from the POV Review Panel to Kevin Stricklin. 
Ex. 6.  The table indicates that eleven accidents occurred at the mine between
September 1, 2012, and August 31, 2013.  Id.  While the Secretary has
not produced evidence about the circumstances surrounding these accidents, the
number of accidents does indicate some measure of indifference toward safety
and health.  The record also includes reports of investigations into two
fatalities at the mine that occurred during the review period.  Exs. 22, 23. 

The Secretary has not produced evidence
relating to all of the potential POV factors listed by the Commission in Brody
II, but rather focuses on the fact that there were “[r]epeated S&S
violations of a particular standard or standards related to the same hazard.”  Sec’y
Mot. 29-30; 78 Fed. Reg. 5056, 5062 (Jan. 23, 2013); Brody II, slip op.
at 11 n.17.  He also makes reference to the “nature and seriousness of the
hazards presented,” Brody II, slip op. at 12 n.19, noting that “falls of
the roof, face and ribs pose one of the most serious hazards in the coal mining
industry.”  Sec’y Mot. 29 (citing United Mine Workers of America v. Dole,
870 F.2d 662, 669 (D.C. Cir. 1989)).  Indeed, both the Commission and Congress
have acknowledged the high degree of danger posed by roof, face, and rib falls,
which have historically been one of the leading causes of injury and death in
underground mining.  Safety Standards for Roof, Face and Rib Support, 53 Fed.
Reg. 2354, 2354, 2369 (Jan. 27, 1998); Elk Run Coal Co., 27 FMSHRC 899,
904 (Dec. 2005); Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1616 (Aug.
1994). 

The mine’s safety record shows repeated
violations involving the same hazard of roof and rib falls, a serious threat to
the safety of miners.  I do not find that there were mitigating circumstances
to show that the mine was taking steps to correct this problem on its own. 
Rather, I find that the Secretary has demonstrated the operator’s disregard for
the safety of miners who could be injured by a roof fall or similar accident, and
therefore has established a pattern of violations. 

With regard to the sixteen violations
listed in the NPOV involving emergency preparedness and escape way issues, I
also find that the Secretary has demonstrated the operator’s disregard for the
safety of miners.  The violations listed in the NPOV include a failure to
provide a lifeline to an alternate refuge; a failure to provide an up-to-date escape
way map on an active section; a failure to maintain positive pressure in the
primary intake escape way; five unsupported kettle bottoms in escape ways or
near lifelines; five instances of mud, rock, or water impeding travel in an escape
way or near a lifeline; an unsupported brow in an escape way; a failure to provide
reflective material on a lifeline; and damaged airlock doors in an escape way. 
Sec’y Mot. 22-27. Fourteen of these were cited under section 104(a), and two
were cited in section 104(d)(2) unwarrantable failure orders.  These violations
all relate to escape way and emergency preparedness hazards, and indicate a
recurring problem.  The Secretary has not produced evidence that these
violations led to any accidents or injuries.  However, he notes that the
Commission, in the context of the S&S analysis, has held that the
seriousness of emergency

preparedness
violations should be evaluated by assuming the existence of an emergency. 
Sec’y Mot. 30-31 (citing Black Beauty Coal Co., 36 FMSHRC 1121, 1123-24
(May 2014)).  In the context of an emergency, these violations could delay or
prevent miners from evacuating the mine, potentially causing injury or death. 
As with the roof and rib control violations, I do not find that the mine’s
conduct was mitigated by the CAP or other safety measures it advances: the
violations occurred continuously throughout the review period, indicating that
any corrective measures the mine took were not effective.  I find that the
violations show the clear tendency of the mine to disregard the safety of
miners, and thus that these violations also constitute a pattern of
violations. 

IV.            
Order

In view of the foregoing, I find that
the Secretary has proven that a pattern of violations existed at Affinity
Mine.  Accordingly, Pocahontas Coal Company’s Motion for Summary Decision is DENIED. 
The Secretary’s Motion for Partial Summary Decision is GRANTED and the
POV Written Notice No. 7219153 is upheld as validly issued.  The validity of
the violation cited in the one 104(e) order in this docket remains in issue.

/s/ Margaret A.
Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Jason
Grover, Francine Serafin, Office of the Solicitor, U.S. Department of Labor,
1100 Wilson

Blvd.,
22nd Floor West, Arlington, VA 22209

Jason
Nutzman, Dinsmore & Shohl, LLP, 900 Lee St. Suite 600, Charleston, WV 25301

Robert
Huston Beatty, Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310,
Morgantown,

WV
26501

APPENDIX I

-       
Exhibit
A.  Copies of the citations and orders listed on Pattern of Violations Written
Notice No. 7219153.

-       
Exhibit

1.  News release from the U.S. Department of Labor announcing the issuance of
three POV notices.

-       
Exhibit

2.  Pattern of Violations Written Notice No. 7219153.

-       
Exhibit

3.  Cover letter sent to Affinity Mine with the Notice of Pattern of
Violations.

-       
Exhibit

4.  Deposition of Jay Mattos, Director of the Office of Assessments,
Accountability, Special Enforcement, and Investigation (OAASEI), Mine Safety
and Health Administration.

-       
Exhibit

5.  Computer printout of screening criteria results for Pattern of Violations
for Affinity Mine.

-       
Exhibit

6.  Memorandum from Jay Mattos to Kevin Stricklin listing the three mines that
met the initial POV screening criteria.  Attachments include a list of the
citations and orders at each mine and a table of accidents and injuries at each
mine.   

-       
Exhibit

7.  Deposition of David Scott Mandeville, District Manager for District Four,
Mine Safety and Health Administration.

-       
Exhibit

8.  Deposition of David Morris, Assistant District Manager for District Four,
Mine Safety and Health Administration.

-       
Exhibit

9.  Memorandum from Jay Mattos to Kevin Stricklin presenting the
recommendations of the Pattern of Violations Review Panel. 

-       
Exhibit

10.  Letter from John Schroder, General Manager, Pocahontas Coal Company,
Affinity Mine Division, to David Mandeville describing mitigating circumstances
at the mine to be considered in the POV review process.

-       
Exhibit

11.  Pattern of Violations Mitigating Circumstances Determination Form for
Affinity Mine.

-       
Exhibit

12.  Mine Safety and Health Administration Mitigating Circumstances Guidance.

-       
Exhibit

13.  Pocahontas Request for Production of Documents.

-       
Exhibit

14.  Mine Safety and Health Administration Pattern of Violations Procedures
Summary.

-       
Exhibit

15.  Corrective Action Program for Affinity Mine with approval letter from
MSHA.

-       
Exhibits
16, 18 & 20.  Emails between Kevin Stricklin, David Morris, and others
discussing language to include in the Notice of Pattern of Violations and cover
letter. 

-       
Exhibit

17.  Draft of the Notice of Pattern of Violations for Affinity Mine. 

-       
Exhibit

19.  Draft of the Notice of Pattern of Violations cover letter.

-       
Exhibit

21.  Pocahontas Discovery Request

-       
Exhibit

22.  Mine Safety and Health Administration Report of Investigation into fatal
accident at Affinity Mine on February 7, 2013.

-       
Exhibit

23.  Mine Safety and Health Administration Report of Investigation into fatal
accident at Affinity Mine on February 19, 2013. 

-       
Exhibit

24.  Decisions Approving Settlement for seven of the citations and orders
listed on the Notice of Pattern of Violations. 

-       
Exhibit

25.  Affidavit of Gary B. Chilcot, consultant with United Coal Company, LLC,
regarding the potential impact of a Notice of Pattern of Violations on Affinity
Mine.

-       
Exhibit

26.  Briefs relating to the Notice of Pattern of Violations issued to Brody
Mining, LLC.

-       
Exhibit

27.  Federal court documents for a case involving the validity of Pattern of
Violations Procedures.

-       
Exhibit

28.  Transcript of oral arguments in the Brody Mining, LLC, Pattern of
Violations dispute.

-       
Exhibit

29.  Secretary of Labor’s Motion to Limit Discovery

-       
Exhibit
1a.  Deposition of Kevin Stricklin, Administrator for Coal Mine Safety and
Health, Mine Safety and Health Administration

-       
Exhibit
1b.  Deposition of Sabian Scott VanDyke, Field Office Supervisor, Mine Safety
and Health Administration.

-       
Exhibit
2b.  Table of communications between Sabian Scott VanDyke, attorneys at the
Office of the Solicitor, and others.

-       
Exhibit
3b.  Transcript of the Status Conference for this case on June 25, 2015, before
Judge Miller.

-       
Exhibit

30.  Memorandum from Kevin Stricklin to David Mandeville notifying Mandeville
that mines in his district had met the screening criteria and directing him to
review the violations listed and obtain information on mitigating
circumstances.

-       
Exhibit

31.  Table of citations and orders at Affinity Mine. 

-       
Exhibit

32.  Declaration of Sabian Scott VanDyke, Field Office Supervisor, Mine Safety
and Health Administration.

[1] Appendix I is
attached and lists each document referenced in this decision by number. 
Because many documents were submitted more than once and by each party,
Appendix I was drafted for ease of reference to the number for each exhibit.

[2]
The eight
factors are:

(1) Citations for S&S violations;

(2) Orders under section 104(b) of the Mine Act for not
abating S&S

violations;

(3) Citations and withdrawal orders under section 104(d) of
the Mine Act,

resulting from the mine operator's
unwarrantable failure to comply;

(4) Imminent danger orders under section 107(a) of the Mine
Act;

(5) Orders under section 104(g) of the Mine Act requiring
withdrawal of miners

who have not received training
and who MSHA declares to be a hazard to

themselves and others;

(6) Enforcement measures, other than section 104(e) of the
Mine Act, that have

been applied at the mine;

(7) Other information that demonstrates a serious safety or
health management

problem at the mine, such as
accident, injury, and illness records; and

(8) Mitigating circumstances.

30 C.F.R. § 104.2(a).

[3]
The draft
of this decision was being finalized at the time Brody II was issued. 
After reading the Commission decision regarding the review of prosecutorial
discretion, it was unclear if the Secretary’s discretion should be reviewed at
all.  Because the parties had developed extensive evidence on the topic, and
after a great deal of consideration, it was decided that a review is
appropriate.

[4]
The two sets of screening criteria are as follows. 

Mines meeting all of the following
four criteria:

1.      At
least 50 citations/orders for significant and substantial (S&S) violations issued
in the most recent 12 months.

2.      A
rate of eight or more S&S citations/orders issued per 100 inspection hours
during the most recent 12 months OR the degree of negligence for at least 25
percent of the S&S citations/orders issued during the most recent 12 months
is “‘high” or “reckless disregard.”

3.      At
least 0.5 elevated citations and orders [issued under section 104(b);
104(d);104(g); or 107(a) of the Mine Act] issued per 100 inspection hours
during the most recent 12 months.

4.      An
Injury Severity Measure (SM) for the mine that is greater than the overall
Industry SM for all mines in the same mine type and classification over the
most recent 12 months.

Or

Mines meeting both of the following
criteria:

1.      At
least 100 S&S citations/orders issued in the most recent 12 months.

2.      At
least 40 elevated citations and orders [issued under section 104(b);
104(d);104(g); or 107(a) of the Mine Act] issued during the most recent 12
months.

MSHA, POV Screening Criteria.