Brody Mining, LLC v. Secretary of Labor, MSHA

Plain-English summary

Brody Mining sought temporary relief from a pattern-of-violations notice and four resulting withdrawal orders. Judge William S. Steele found that Brody raised substantial legal questions about the pattern rule, use of nonfinal violations, screening criteria, and changed mine management. The company nevertheless failed to present evidence proving that suspending the section 104(e) enforcement mechanism would not adversely affect miner health and safety. The judge held that claimed monetary or bankruptcy harm was not part of the statutory temporary-relief test and had not been established as irreparable. The application was denied.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 814(e) and 815(b)(2)
• Outcome: Brody's application for temporary relief from the pattern notice and withdrawal orders was denied.
• Key point: Temporary relief requires evidence that the requested suspension will not adversely affect miner health and safety, even when the operator raises substantial merits questions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

875 GREENTREE ROAD

7 PARKWAY CENTER, SUITE 290

PITTSBURGH, PA 15220

TELEPHONE: (412)920-7240

FAX: (412)928-8689

November 21, 2013

BRODY
MINING, LLC,�����

����������������������������������� Contestant,

����������
v.���

SECRETARY
OF LABOR, ������������������������

MINE� SAFETY
AND HEALTH��������

ADMINISTRATION,
(MSHA),������������������

����������������������������������� Respondent

�����
CONTEST PROCEEDINGS

�����
Docket No. WEVA 2014-83-R���������������

�����
Order No. 7166788; 10/28/13

�����������������������������������������������������������

�����
Docket No. WEVA 2014-82-R���������������������������

�����
Order No. 9003242; 10/28/13

�����������������������������������������������������������

�����
Docket No. WEVA 2014-86-R

�����
Order No. 4208892; 10/29/13

�����������������������������������������������������������������������

����
�Docket No. WEVA 2014-87-R

����
�Order No. 4208893; 10/29/13

����������� �����������������������������������������������

����
�Notice No.: 7219154; 10/24/13

����
Mine ID: 46-09086

���
�Mine: Brody Mine No. 1

�����������

ORDER DENYING APPLICATION FOR TEMPORARY
RELIEF

Before:�����
Judge Steele

����������� This
case is before me upon an Application for Temporary Relief filed by Contestant
Brody Mining, LLC (�Brody Mining�) pursuant to Section 105(b)(1)(B)(2) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801, et seq. (�Act� or �Mine
Act�) and 29 C.F.R. �� 2700.46, 47. Brody Mining filed its Application on
November 4, 2013. On November 7, 2013, the Secretary filed his Memorandum of
Law in Support of Opposition to Application for Temporary Relief. A hearing on
this matter was held on November 8, 2013 in Pittsburgh, Pennsylvania.

�����������

Factual and Procedural Background

����������� These Contest cases are related to a
Pattern of Violations (�POV�) notice issued to the Brody Mine pursuant to
section 104(e) of the Mine Act. Notice No. 7219154 was issued on October 24,
2013. Subsequently, Order Nos. 9003242, 7166788, 4208892, and 4208893 were
issued at the mine on October 28 and 29, each requiring the withdrawal of all
persons in the affected area until the violation was abated, pursuant to
section 104(e)(1) of the Act. In its Application for Temporary Relief, Brody
sought temporary relief from these orders and the notice of a pattern of
violations.

Legal Standard

����������� Section 105(b)(1)(B)(2) of the Act
states:

[a]n applicant may file with the
Commission a written request that the Commission grant temporary relief from
any modification or termination of any order or from any order issued under
section 104 together with a detailed statement giving the reasons for granting
such relief. The Commission may grant such relief under such conditions as it
may prescribe, if �

(A) A hearing has
been held in which all parties were given an opportunity to be heard;

(B)  The
applicant shows that there is substantial likelihood that the findings of the
Commission will be favorable to the applicant; and

(C)  Such
relief will not adversely affect the health and safety of miners

The requirements of the statute are
mirrored in the Commission�s rules:

� 2700.46 Procedure.

(a) When to file.
As provided in section 105(b)(2) of the Act, 30 U.S.C. � 815(b)(2),
an application for temporary relief from any modification or termination of any
order or from any order issued under section 104 of the Act, 30 U.S.C. 814, may
be filed at any time before such order becomes final. No temporary relief shall
be granted with respect to a citation issued under sections 104(a) or (f) of
the Act. 30 U.S.C. �� 814(a) and (f).

(b) Statements in
opposition. Any party opposing the application shall file a statement in
opposition within 4 days after receipt of the application.

(c) Prior hearing
required. Temporary relief shall not be granted prior to a hearing on such
application.

� 2700.47 Contents
of application.

(a) An application
for temporary relief shall contain:

(1) A showing of
substantial likelihood that the findings and decision of the Judge or the
Commission will be favorable to the applicant;

(2) A statement of
the specific relief requested; and

(3) A showing that
such relief will not adversely affect the health and safety of miners in the
affected mine.

(b) An application
for temporary relief may be supported by affidavits or other evidence.

Analysis

The parties
appear to agree that temporary relief may be granted in this situation. See
Application at 4 (quoting 78 FR 5056 (January 23, 2013)). The court agrees. In
seeking temporary relief, consistent with the forgoing statutory provision and
Commission Procedural Rules 46 and 47, the applicant has the burden of showing
all three of the statutory requirements before temporary relief is granted. As
noted above, a hearing was held on November 8, 2013, satisfying part (A) of the
temporary relief provisions.

Other than the hearing requirement, the
right to temporary relief is to be decided by two statutory requirements. First,
the applicant must show that there is substantial likelihood that the findings
of the Commission will be favorable to the applicant; and second the applicant
must show that such relief will not adversely affect the health and safety of
miners. The applicant has the burden of proof to establish these elements. The
wording of the statute requires that the applicant make �showings,� and
accordingly, the burden is on the applicant. In addition, even general
procedural rules require the applicant to shoulder the burden of proof as the
proponent of the order. See Commission Rule 63(b)(�The proponent of an
order has the burden of proof�); See also Buck Mountain Coal Company, 15
FMSHRC 2350, 2352 (July 1993)(ALJ) (wherein temporary relief was denied by a
Judge who found that the applicant had failed to meet its burden of proof to
justify relief due to the conflicting testimony of witnesses).

The Contestant�s application raises a
number of arguments which relate to the likelihood that the Commission will
ultimately favor its challenge to the pattern of violations notice by its
challenge to the later issued orders enforcing the notice. It argues that the
Secretary�s regulations at 30 C.F.R. Part 104, as constituted as of March 25,
2013 are invalid since it argues that POV notifications cannot be based on
non-final prior issuances. Application at 6-10. The Contestant appended a brief
filed by other parties in the 6th Circuit challenging Part 104 rule
for various reasons. Application at Exhibit 7. It argues that the underlying
screening criteria, posted on the MSHA website, had not been subjected to
notice and comment rulemaking as required by the Administrative Procedure Act
and therefore could not be utilized. Application at 10-12. The Contestant also
alleges a change of ownership on December 31, 2012, subsequent mine personnel
and mine management changes, and closures of certain areas of the mine, which
it claims the Secretary should have considered more fully as mitigating
factors. It states that the Secretary abused his discretion in considering the
criteria the Secretary used to assess the POV finding against its mine. Application
at 13-14.

The Secretary defends the pattern of
violations rule�s consistency with the Mine Act, and claims
that it validly adopted the pattern of violations rule, and that the screening
criteria are not subject to the requirement of notice and comment rulemaking See
Secretary�s Memorandum at 3-25. The gist of the Secretary�s arguments is
that the screening criteria and pattern criteria guide him in the
identification of mine operators who may have a pattern of such violations. This
is data that informs the prosecutorial decision-making process. Secretary�s
Memorandum at 41. He claims that he has identified a pattern of violations in a
set of previously issued significant and substantial violations at the Brody
Mine and that he will demonstrate that this pattern exists at a hearing. Id.
at 39-40. The Secretary appears to be willing to demonstrate the existence
of the violations and their levels of gravity at a hearing in this matter and
thereby addresses the issue of finality regarding violations which compose the
pattern but which have not been adjudicated in the past.

These questions are complex and the
meaning of term �pattern of violations� has not been fully litigated. In many
respects, this appears to be a case of first impression. The court does not now
definitively make a determination of whether the Contestant has established
that the Commission would favor its position on the merits on the question of
whether Part 104 and the screening criteria are invalidly promulgated, or
incorrectly applied, because it is unnecessary to do so at this early point in
the litigation. That is because the Contestant has failed to meet its burden to
establish that granting the relief would not adversely affect the health and
safety of the miners.

The court has looked diligently for
argument on this essential point and found remarkably little mention of it, and
importantly, no evidence adduced to support it. �The Application only mentions
this prong in passing. Application at 5. The Memorandum states only that
�because of wide-ranging improvements, complete change of management personnel,
and increased scrutiny, relief will not adversely affect the safety and health
of the miners.� Memorandum in Support of Application at 9. Statements of
counsel are not evidence. See Secretary of Labor o/b/o Walter Jackson v. Mountain
Top Trucking Co., Inc. et al., 21 FMSHRC 1207, 1213 (November 30, 1999). As
for unauthenticated documents of disputed real world significance, they could
be excluded as lacking authentication under an analogous rule at Federal Rule of Civil Procedure 56(e), and they
remain open to dispute as to their meaning and accuracy. See Hoffman v.
Applicators Sales and Service, Inc., 439 F.3d 9 (1st Cir. 2006).

The Secretary did not reply to the
statement of the Contestant in the Application on this point, but in the
discussion of the claimed mitigating circumstances surrounded by the alleged
change of ownership and the adoption of a corrective action program, the
Secretary discounts the idea that these changes might be found to have an
impact on miner safety and health. Secretary�s Memorandum at 36-39. Accordingly,
whatever effect these changes have made, they remain disputed by the parties
and there is certainly no evidence upon which to base relief. There is
insufficient indication that removing the possibility of Section 104(e)
withdrawal orders will not affect mine safety and health.

At oral argument the issue of the effect
of the relief on the safety and health of the miners also was only discussed
briefly, as the mine operator�s counsel stated that the abatement of the
violations found by the inspector is sufficient to address the safety concerns. Tr. 34. The Secretary�s counsel responded to the
mine operator�s claim by stating that what it regards as a pattern of
violations has required this enhanced enforcement. Tr. 57.

In this case the mine operator has not
met its burden to establish that granting temporary relief would not affect the
safety and health of its miners. The remedy at Section 104(e) exists as part of
the graduated enforcement scheme put in place by the framers of the Mine Act. See
Greenwich Collieries, 12 FMSHRC 940, 945 (May
1990)(citing White County Coal Corp., 9 FMSHRC 1578, 1581 (Sept. 1987) (discussing
the graduated enforcement mechanisms of the Act));S. Rep. No. 95-181, at 4 (1977)(wherein the Committee stated
that under the prior Mine Act, �Mine operators still
find it cheaper to pay minimal civil penalties than to make the capital
investments necessary to adequately abate unsafe or unhealthy conditions, and
there is still no means by which the government can bring habitual and chronic
violators of the law.�). The closure orders are designed to improve
miner safety and safeguard their health by spurring increased attempts by the
mine operator to assure compliance or remedy non-compliant conditions prior to
detection by MSHA inspectors. Relying only on the abatement time requirements
is not as effective since the inspector must still detect the violation wherein
the possibility of a pattern order is likely to cause the mine operator to take
corrective action on potential violations before they are ever discovered by
MSHA. The Section 104(e) remedy is one of these remedies that are designed to
spur added compliance. Absent some clear testimony and authenticated
documentary evidence put in to the record to the contrary, I cannot find that the
relief would not reduce the health and safety of the miners during the pendency
of this litigation.

Finally, the
court notes that the application draws attention to potential �irreparable
harm� to the Contestant if temporary relief is not granted. Application at 4-5.
As a matter of law, this potentiality is not part of the test to determine the
availability of temporary relief under Section 104(b)(1)(B)(2). There is simply
nothing in the statute which allows this consideration in an application for
temporary relief. In fact, the U.S. Court of Appeals for the D.C. Circuit has
stated that this section is a �model of near-perfect clarity,� making it clear
that there is little room for interpretation of ambiguity in this provision of
the Act. Performance Coal Co. v. FMSHRC, 642 F.3d 234, 239 (D.C. Cir.
2011). Moreover, no irreparable harm has been established. Mere monetary losses
are not considered irreparable harm. See United Mine Workers
Of America On Behalf Of Mark A. Franks v. Emerald Coal Resources, 2013 WL 4140440 (F.M.S.H.R.C.)(citing Secretary on
behalf of Price and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC 1312
(Aug. 1987)). Claims regarding the potential effect of the Secretary�s actions
on the Contestant�s bankruptcy are not established and are too conjectural to
be credited .In light of the clear statutory wording, and the
instruction from the D.C. Circuit that the clear provisions of 105(b)(1(B)(2)
should not be embellished, such arguments are not considered material here and
if they were, they would be rejected.

Conclusion

Accordingly,
Brody Mining�s Application for Temporary Relief is DENIED.

����������������������������������������������������������� /s/
William S. Steele �

����������������������������������������������������������� William
S. Steele

����������������������������������������������������������������������� Administrative
Law Judge

�����������������������

Distribution:

R. Henry Moore, Esq.,
Jessica M. Jurasko, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500,
401 Liberty Avenue, Pittsburgh, PA 15222

Michael T. Cimino, Esq.,
Adam Schwendeman, Esq., Jackson Kelly PLLC, 500 Lee Street East, Suite 1600,
Charleston, WV, 25301-3202

Benjamin M. McFarland,
Esq., Jackson Kelly PLLC, 1144 Market Street, Wheeling WV 26003

Kenneth B. Oakley, Esq.,
Jackson Kelly PLLC, 175 East Main Street, P.O. Box 2150, Lexington, KY 40507

Robert S. Wilson, Esq.,
Jason S. Grover, Esq., U.S. Department of Labor, Office of the Regional
Solicitor, 1100 Wilson Boulevard, 22nd Floor West, Arlington VA 22209-3939