FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W. , Suite 9500

Washington, D.C. 20001

(202) 434-9933

June 13, 2012

ORDER DENYING RESPONDENT’S MOTION FOR INTERLOCUTORY REVIEW

Before: Judge Moran

            Respondent Bledsoe Coal Corporation, pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, has filed a Motion for Certification for Interlocutory Review. Pursuant to that provision, interlocutory review is appropriate where the ruling sought to be appealed “involves a controlling question of law and [in the judge’s opinion] immediate review will materially advance the final disposition of the proceedings.” (emphasis added). Finding that immediate review will not materially advance the final disposition of the proceedings, the Court DENIES Bledsoe’s Motion.

            In light of the fact that this Court has already issued two Orders on the issues, expressing in some 25 pages its views on the issues raised, little more needs to be said about Bledsoe’s Motion. Initially, the Court issued its Order on Contestant’s Motion for Partial Summary Decision, and following that, it later issued its Order on the Secretary’s Motion for Partial Summary Decision. For the convenience of the Commission, the Court has attached both its Orders as Appendixes to this Order.

            Nearly twenty-two years ago, MSHA promulgated its Final Rule addressing “Pattern of Violations.” Essentially, to be plain about it, Respondent is attempting to bring MSHA back to 1990, hoping that it can have the Part 104, Pattern of Violations, provisions revoked and thereby have the rulemaking begin anew. It seems a little late for that kind of challenge. The Court has found that the Agency faithfully followed its Part 104 rules in finding that the Respondent has a pattern of violations. Still, there is at least theoretical hope for Bledsoe, as noted in the Court’s Order on the Secretary’s Motion for Partial Summary Decision, because should it be able to establish that some number of 18 contested S & S violations do not, in fact, have that attribute, it is possible that Bledsoe could meet the target rate, which in turn would cause it to avoid, retroactively, its pattern designation. Yet, for some reason, Bledsoe is not so anxious to test the validity of those special findings. The hearing on those contested S & S findings is not very far off, as it is currently scheduled to commence on September 5, 2012 and the Court advised that it is willing to announce its findings on the issue for those 18 citations at the close of the evidence. Accordingly, the Commission would be better served to have the full evidentiary record before it, should review be accepted at all, once a decision is issued.

            As a review of the Court’s previous two Orders in this matter reveals, Bledsoe has a penchant for exaggeration in its submissions, and it is with bemusement that the Court observes that Bledsoe’s Motion for Interlocutory Review is no exception. To begin, Bledsoe maintains that “all agree that these issues will ultimately have to be decided by [the Commission]. Motion at 3. However, as all should know, review by the Commission is within its “sound discretion,” and therefore it may decide, after the hearing and decision, that the Court’s determinations, both as to its Orders, and however it ultimately decides the S & S issues for the disputed citations, that nothing more needs to be said about the matter. Avoiding the finality that a hearing would offer as to the presence or absence of particular S & S claims, Bledsoe instead views that proceeding as “tedious and extremely time consuming regardless of whenever it occurs during this litigation.” Motion at 3 (emphasis added).

            Further, while Bledsoe states that the Secretary has no objection to its approach (i.e. interlocutory review) that is a bit less than accurate too. The Secretary did state in an email to the Court on June 12, 2012 that “the Secretary does not intend to file a response” but that is not the equivalent of not objecting to such review. Rather, it has remained silent. A review of the Court’s earlier Orders will also make it plain that Bledsoe continues to, at a minimum, not understand those Orders. For example, it states that “MSHA cannot determine an operator has a pattern of violations without proof of the requisite violations. Any interpretation that bases a POV determination on anything other than a pattern of proven violations is not reasonable, and is not entitled to Chevron deference.” Motion at 6 (emphasis in Motion). That sounds great until it is realized that the basis for Bledsoe traveling down the road to being placed in potential pattern status was based entirely on admitted violations. Upon first reading this Court’s two prior Orders, the other inadequacies in Bledsoe’s present motion, seeking interlocutory review, will be apparent. Accordingly, Respondent’s Motion for Interlocutory Review is DENIED.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

Mary Beth Zamer, Esq., Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2440

Marco Rajkovich, Esq., John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513  

APPENDIXES

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W. , Suite 9500

Washington, D.C. 20001

(202) 434-9933

ORDER ON THE SECRETARY’S MOTION FOR PARTIAL SUMMARY DECISION

Before: Judge Moran

Introduction.

            Pursuant to 30 C.F.R. § 2700.67, on March 6, 2012, the Secretary of Labor filed a motion for partial summary decision, seeking a ruling upholding the issuance of the Notice of Pattern of Violations, No. 8333606, which Notice was issued to the Respondent, Bledsoe Coal Corporation, regarding its Abner Branch Rider Mine, (“mine”), on April 12, 2011. Motion at 1-2. The Secretary notes that it issued Respondent a notice, alleging a potential pattern of violations on November 18, 2010, as well as a withdrawal order under section 104(e)(1), alleging a significant and substantial violation of a mandatory standard, and eight (8) withdrawal orders pursuant to section 104(e)(2). The Secretary contends that, as it followed the requirements for issuance of a Notice of Pattern of Violations, pursuant to 30 C.F.R. Part 104, the Notice should be upheld. For the reasons which follow, the GRANTS the Secretary’s Motion and DIRECTS that the outstanding, identified, non-final S&S citations/orders associated with this litigation be set for prompt hearing.

Findings of Fact and Conclusions of Law.

            The actions described above were the culmination of several preceding events. The Secretary completed its pattern of violations screening for the mine, which screening encompassed the twelve month period beginning on September 1, 2009 and ending August 31, 2010. As noted above, that screening resulted in the Respondent being notified, on November 18, 2010, pursuant to 30 C.F.R. § 104.4(a), that its mine was identified as having a potential pattern of violations. Nine citations or orders were identified, each pertained to violations of 30 C.F.R. § 75.400, and each of those had become final orders during the twelve month review period. Bledsoe opted to implement a corrective action plan, which was dated January 5, 2011. However, about two months later, on March 18, 2011, in compliance with 30 C.F.R. § 104.4(b), MSHA advised Bledsoe that a potential pattern of violations continued to exist, noting that the mine’s S&S violations were double the target violation rate. Ex. 6. The same report, again following section 104.4(b), informed the mine that it had 10 days to submit comments about it to the Administrator for Coal Mine Safety and Health, but comments would not forestall submission of the report to the Administrator.

            The Secretary concludes that, as MSHA fully complied with the Part 104 Pattern of Violations provisions at every step of that process, and as the Mine’s “history of nine final S&S violations of 30 C.F.R. § 75.400 during the one-year pattern review period establishes a pattern of violations [pursuant to 30 C.F.R. § 104.3(a)(1)],” the pattern of violations notice, No. 8333606, should be upheld. Sec. Motion at 4-5. In support of that conclusion, the Secretary notes that this Court, in its November 10, 2011 Order on the Contestant’s Motion for Summary Decision, observed that Congress left it to the Secretary’s expertise to determine when more was needed to be done for enforcement than simply identifying each violation and then acting to have each violation corrected. Instead, when an operator has a pattern of S&S violations of mandatory standards, the provisions of section 104(e) of the Mine Act are to be applied. In enforcing those provisions, the Secretary was directed by Congress to make such rules as the Secretary deemed necessary to establish criteria for determining when a pattern of violations of violations of mandatory standards exists and making the determination for the enhanced enforcement provision addressing a pattern of violations. The Secretary took these steps both through the Pattern of Violations provisions at 30 C.F.R. Part 104 and implementing policy. Accordingly, it is the Secretary’s position that, as it fully complied with both the statutory provision and with the Part 104 Pattern of Violations provisions in all respects, and as there is no issue of any material fact, the issuance of the Notice of Pattern of Violations No. 833606 should be upheld. Sec. Motion at 4-5.

            In its response to the Secretary’s Motion, Bledsoe decided to renew its cross-motion for partial summary decision. However, that latter matter was fully addressed in the Court’s prior Order. For the reader’s convenience, it appears again as an appendix to this Order.

            Bledsoe notes that the Secretary has argued that POV Notice No. 8333606 should be upheld as a matter of law as she has “followed all of the procedural requirements set forth in 30 C.F.R. Part 104.” Bledsoe Response at 2. Bledsoe contends that “[a]ll that is said by the Secretary to support a substantive finding of a POV in this case is . . . ‘the Abner Branch Rider Mine’s history of nine final [significant and substantial or ‘S&S’] violations of 30 C.F.R. § 75.400 during the one-year pattern review period establishes a pattern of violations.’” Id. at 3, citing the Secretary’s Motion at 4.

            Mischaracterizing the Secretary’s position, Bledsoe asserts that, by the Secretary’s argument, “[a]ll the Secretary must show is that she accused Bledsoe of subsequent S&S violations.” Id. (emphasis in original). Underlying that assertion is Bledsoe’s claim that the Secretary has not “offer[ed] a legal definition of ‘pattern,’ [and] ... instead has determined that more than one final S&S violation is sufficient.” Id.

            Bledsoe then transitions to its overriding issue of dissatisfaction, a matter already addressed in the Court’s prior Order, asserting that “[i]t is incumbent upon the Secretary to establish criteria to guide Bledsoe – and other operators – on what the law requires.” Bledsoe asserts that, per the Court’s Order, the Secretary has both unfettered and unreviewable discretion to call “any pattern of more than one S&S accusation a POV.” Id. at 4-5. Resurrecting its due process claim, it suggests that, as there is no definition of a POV, it would be impossible to determine if a POV is present for Bledsoe. On this basis, Bledsoe renews, with no new grounds, its prior motion for partial summary decision. The Court again directs attention to the Appendix to this Order, which provides its prior decision addressing these contentions.

            Short of its wish to have the Secretary’s POV provisions cast aside, Bledsoe alternatively maintains that “[a]t the very least, [it] must be allowed to adjudicate whether the violations which placed it on POV status were properly designated S&S.” Id. at 6. In support of this, departing from the facts here, Bledsoe points to Rockhouse Energy Co. v. Secretary, 30 FMSHRC 1125 (December 2008) (ALJ)(“Rockhouse”), wherein another ALJ “accelerat[ed] his trial schedule to rule decided similar S&S issues [sic] prior to the issuance of a POV notice . . . .”  Id. But Bledsoe, in characterizing what another judge had to decide as “similar S&S issues,” must be using the phrase “similar S&S issues” in the loosest of senses in trying to apply that case to the facts at hand. The reason is plain. Whereas in Rockhouse the mine operator was challenging whether some 23 citations issued under Section 104(a) were valid and whether, if valid, they were  “S&S,” those issues had not already been decided. For Bledsoe, though it would like to unring the bell, it cannot. It has settled and paid the matters constituting the violations the Secretary has used for its pattern case.

            Having considered the Secretary’s Motion and Bledsoe’s Response, the Court posed questions to the parties to better understand their positions. These were useful to the Court’s resolution of the Motion. Based in part upon those responses, the Court makes the following observations and findings. In Exhibit 1 to the Secretary’s Motion, the Secretary did identify, with particularity, to Bledsoe, under the page entitled “Screening Criteria for Pattern of Violations” at the “Final Order Criteria” box, that there were at least five (5) S&S citations /orders of the same standard that became final orders of the Commission during the 12 month period being reviewed of September 1, 2009 through August 31, 2010. In fact, MSHA identified that nine (9) such citations/orders were so involved. There is no dispute that each of these 9 violations involved the same standard, that each became final orders of the Commission and that each of them became final during the review period, as just cited above.

            The Court also noted that, within the Secretary’s Exhibit 1, attached to the Secretary’s Motion, five (5) pages were included, listing some 159 citations. Thirty-one (31) of those listed citations cited section 75.400 and Citation numbers 8356674, 8356676, 8362103, 8362416, 8362419 and 8362424 were among the thirty-one citations citing that section. The Secretary explained the inclusion of these documents stemmed from the fact that they were included in MSHA’s November 18, 2010 letter to the Respondent. The five page list of 159 citations represents all of the violations issued to the mine during the review period and, of those, 79 were S&S. The five page list of 159 citations supports the Secretary’s determination that the mine met the initial screening criteria, per 30 C.F.R. § 104.2. As shown by the “Screening Criteria Results for Pattern of Violations,” (“SCR for POV”), which was included in November 18, 2010 letter from MSHA to the Bledsoe Mine, Initial Criteria 1 at item 1 requires that a mine have at least 50 citations/orders that were “S&S” and Bledsoe had 79. In each of the three other categories for Initial Criteria 1, Bledsoe’s Abner Branch Mine met those requirements.

            The Court also inquired as to the particular pattern criteria MSHA relied upon when it informed Bledsoe on November 18, 2010 that a Potential Pattern of Violations existed at its Abner Branch Mine. A related question, the Court asked whether, when MSHA informed the mine on March 18, 2011that a PPOV continued to exist, that determination was based upon all S&S violations or only S&S violations involving 30 C.F.R. § 75.400. The Secretary advised that the November 18, 2010 letter relied upon Section 104.2 in toto, as that Section identifies the factors to be considered in the Initial Screening review period. Once, as happened here, that Initial Screening did not eliminate the mine, MSHA advanced to the Pattern Criteria provision, as set forth at Section 104.3. In turning to Section 104.3, MSHA examined the three criteria identified at that provision, which includes “[a] history of repeated significant and substantial violations of a particular standard.” 30 C.F.R. § 104.3(a)(1). That “particular standard” here was 30 C.F.R. § 75.400. That determination was then reflected in MSHA’s November 18, 2010 letter to the mine which letter included the Agency’s “Screening Criteria Results for Pattern of Violations” (i.e. the “SCR for POV,” referred to above). Accordingly, the Court finds that MSHA followed its rules completely; first finding that the mine was captured within the Initial Screening, per 30 C.F.R. Section 104.2, then identifying the applicable Pattern Criteria, per 30 C.F.R. Section 104.3, and then issuing the notice, per 30 C.F.R. Section 104.4, on March 18, 2011, that the mine failed to meet its target rate. Again, completely complying with its 30 C.F.R. Pattern of Violations provisions, the MSHA District Manager, finding that Bledsoe did not meet its target rate, and that no mitigating circumstances existed to explain that failure, submitted his report to the Administrator for Coal Mine Safety and Health and noted that the mine had 10 days to submit comments to the Administrator about MSHA’s finding that a Potential Pattern of Violations continued to exist.

            MSHA has noted in its Supplement to Motion for Partial Summary Decision (Sec’s Supplement) that for the 18 alleged violations, each of which is also alleged to be S&S, none are final. That is, each of the 18 alleged violations, referenced in its March 18, 2011 letter to Bledsoe, are contested and pending litigation. Supplement at 6 and Exhibit 6. The Secretary takes the position that none of those 18 would need to be upheld for the Respondent to continue to be under a pattern. As expressed in the Sec’s Supplement, the mine met the pattern criteria per the District Manager’s November 18, 2010 letter to Bledsoe. However, the Secretary goes on to state that “[t]o avoid the consequences that may result from establishing such a pattern, under 30 C.F.R. § 104.4(a)(4) the mine was provided with an opportunity to institute a program to avoid repeated significant and substantial violations. The District Manager allowed a nine-week period, from January 11, 2011 to March 12, 2011, for determining whether the program effectively reduced the occurrence of significant and substantial violations at the mine. . . . that program was aimed at reducing the occurrence of significant and substantial violations at the mine without limitation to specific mandatory standards. The program failed.” Sec’s Supplement at 7. Thus, by the Secretary’s vantage point, because the mine “failed to effectively reduce the occurrence of significant and substantial violations during the period provided under 30 C.F.R. § 104.4(a)(4), the Secretary issued 104(e) Notice No. 8333606.” Id.

            Although the Secretary notes, and the Court agrees, that “[t]here is no regulatory requirement that significant and substantial violations issued during the corrective-action-program period must be final before the Secretary may determine whether the program effectively reduced the occurrence significant and substantial violations at the mine,” that can only carry the Secretary’s position until the alleged violations with the disputed significant and substantial findings have been adjudicated. Any other position would make no sense at all. For example, if none of the 18 S&S violations were found, upon being litigated, to be, in fact, “S&S,” the Secretary could hardly assert that the mine failed to meet its target rate. While the Secretary adds that the pattern provision under the Mine Act does not even require “that the mine be provided with an opportunity to institute a program to avoid repeated significant and substantial violations before the Secretary may issue a 104(e) pattern notice,” the fact of the matter is that MSHA does provide such an opportunity. Sec’s Supplement at 7. That opportunity would be meaningless if, under the example just given, a mine, despite showing that it in fact had met or exceeded its target rate, would remain under the pattern, regardless.

            Finally, the Court inquired as to the impact on the other ten (10) dockets if it were to rule in favor of the Secretary’s Motion for Partial Summary Decision. The Secretary advises that a hearing would be needed for each of dockets.

            Bledsoe too responded to questions posed by the Court and it renewed its cross-motion for summary judgment in the same document. (“Bledsoe Response”) In its Response, Bledsoe contends that the Secretary “argues that following the procedures set forth in 30 C.F.R. Part 104 is all that is needed for an adjudication of a POV.” Bledsoe Response at 2 (emphasis in Response). Of course, the Secretary does not merely claim that procedural fealty alone can carry the day. Among other things, there have to be violations, which have become final and which became final during a particular review period. Bledsoe continues its argument, asserting that “the statute and the regulations remain silent as to what constitutes a POV,” but that too is an exaggeration, as the regulations do explain the pattern criteria and the steps which follow on the road to the issuance of a notice of a pattern of violations from the Administrator. Continuing its usage of hyperbole, Bledsoe claims that the Secretary “has determined that more than one final S&S violation is sufficient.” Id. at 3. The Secretary made no such claim. Instead, the Secretary gathered the facts pertaining to violations which became final during the review period and applied those final determinations to the regulations, noting along the way the Agency’s meticulous adherence to the procedural steps under the Pattern of Violations regulations at Part 104.

            So too, Bledsoe takes references to Congress’ statements about a pattern, wherein that body expressed that “a pattern would be ‘more than an isolated violation’ but not necessarily ‘a prescribed number of violations,” and the Court’s statement from that Congressional remark about patterns that “Congress identified one end of the spectrum, that a pattern is more than an isolated violation, but left it to the Secretary’s expertise to determine when more was needed to be done for enforcement than simply the routine process of identifying each violation, one by one, and then having each violation abated,” and transforms them into “the ALJ’s ruling” claiming that it is a “more than one” standard. In its subsequently submitted “SUPPLMENTAL [sic] MEMORANDUM”, Bledsoe repeats this claim: “Bledsoe is fully aware that the ALJ has ruled that more than one S&S violation may be sufficient to establish a pattern” and that this judge-created standard “subjects every mine in the country to a POV finding . . . [by] hold[ing] that any mine which receives more than one S&S violation over a two year period may be subject to a POV finding based on whatever criteria the Secretary chooses to apply at a given time.” SUPPL[E]MENTAL MEMORANDUM at 3. The Bledsoe-created “more than one” standard, blossoms into a claim that it allows the Secretary to “call any pattern of more than one accusation a POV.” BLEDSOE RESPONSE TO SECRETARY’S MOTION at 4-5.  

            In Bledsoe’s “SUPPL[E]MENTAL MEMORANDUM IN RESPONSE TO THE SECRETARY’S MOTION FOR PARTIAL SUMMARY DECISION,” it responded to two questions posed by the Court in reaction to the Motion and Bledsoe’s initial response thereto. The Court asked if Bledsoe believed it should be entitled to relitigate all S&S violations, including those which have become final orders. As to final orders, Bledsoe concedes that it cannot relitigate S&S violations which have become final. However, Bledsoe, notes that, of the 79 citations designated as “S&S” in the period from November 2, 2009 through August 25, 2010, it challenged 53 of them, with the 26 others becoming final orders. Bledsoe Suppl[e]mental Memorandum at 2-3. Bledsoe notes that “[a]ll 79 were the basis for the PPOV notice issued by the Secretary.” Id. at 3.

            In one aspect the Court does agree with Bledsoe. This relates to any S&S citations/orders which it has contested and have not since become final orders. As noted in a more detailed fashion below, any such non-final citations/orders which were a part of the basis for MSHA’s determination to issue its Section 104(e) Notice, No. 8333606, because they were part of the Agency’s determination that Bledsoe failed to meet its target rate, must be tried promptly because there is the possibility that some number of those violations could be found by the Court as non-S&S violations. A sufficient number of such non-S&S findings raises the possibility that Bledsoe’s S&S rate could be at or below 5.49 per 100 inspection hours. Only a hearing and a decision on those non-final matters can resolve that. In the meantime, just as with a section 104(d)(1) citation or order, that is subsequently found, after a hearing, to lack the special findings of being S&S and unwarrantable, or simply unwarrantable, as the case may be, the section 104(e) Notice, No. 8333606 remains intact. Should the requisite number of violations be found to be “non-S&S,” and therefore establish that Bledsoe did achieve at least its target rate, the section 104(e) would be unwound, just as in the case of (d)(1) citations and orders found to be lacking.

CONCLUSION

            For the reasons set forth above, the Secretary’s Motion for Partial Summary Decision is GRANTED. However, as noted at footnote 13, “The 18 S&S violations identified in MSHA’s March 18, 2011 letter to Bledsoe have not become final orders. Each of them are being litigated. At the hearing, these will be tried first. Accordingly, as discussed earlier, it is possible that, should a certain number of those S&S violations ultimately be found, either through litigation or otherwise, that they were not, in fact, S&S, the S&S violation rate could be redetermined to be at a lower rate than the presently assumed rate of 11.54 such violations per 100 inspection hours.” This is potentially important for Bledsoe, as a finding that some, yet to be calculated, number of violations, either were not violations or at least were not “significant and substantial” violations, could reduce its S&S violation rate to at or below 5.49 per 100 inspection hours. Therefore these alleged violations need to be set for hearing immediately. The parties are directed to email the Court immediately to establish a date and time for a conference call so that the prompt hearing for these matters can be finalized.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

Mary Beth Zamer, Esq., Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2440

Marco Rajkovich, Esq., John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513  

      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W. , Suite 9500

Washington, D.C. 20001

(202) 434-9933

Before: Judge William Moran

ORDER ON CONTESTANT’S MOTION FOR PARTIAL SUMMARY DECISION

           On August 17, 2011, Contestant Bledsoe Coal Corporation (“Bledsoe”) filed its Motion for partial summary decision (“Motion”) seeking the vacation of each order issued by the Mine Safety and Health Administration (“MSHA” or “Agency”) associated with the Agency’s issuance of a notice of a pattern of violations (“POV”) on April 12, 2011. Bledsoe assails the Agency’s decision on the grounds that it was never subjected to notice and comment rulemaking, that it lacked fair notice and that the criteria it used were an unreasonable interpretation of the Mine Act and regulations. For the reasons which follow, each of Bledsoe’s claims are rejected.

           In an unfortunate practice of selectively quoting, and by that process, being misleading as to the Mine Act’s requirements regarding a pattern of violations of mandatory health or safety standards, Bledsoe asserts “Congress mandated the Secretary, under Section 104(e)(4) of the Mine Act, to “make such rules” to establish the criteria for determining when a pattern of violations exists.” Motion at 3-4 (emphasis in motion). The Mine Act states no such thing. Instead, the provision provides, in full, that “The Secretary shall make such rules as he deems necessary to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists.”

           Although once would be too often, Bledsoe repeats its mischaracterization, which mischaracterization is not about some ancillary matter, but involves a fundamental aspect of the issue. Bledsoe’s own words put this on full display, as it asserts: “Section 104(e)(4) of the Mine Act directed the Secretary to make rules for determining when a pattern exists, but in so doing, Congress, in unambiguous language, directed the Secretary to use notice and comment rulemaking in accordance with the Administrative Procedure Act.” Bledsoe Motion at 8. And yet again, not much later in its Motion: “Congress required the Secretary to use notice-and-comment rulemaking to establish POV criteria.” Id. at 11. To borrow, and slightly alter, an expression, “a mischaracterization, stated often enough, does not become an accurate characterization. That is, proof by repeated assertion does not make something so.

           Accordingly, to keep the facts straight, it bears repeating, with emphasis upon the critical phrase omitted by the Contestant, to bring attention to the words of the statutory provision:

                      The Secretary shall make such rules as he deems necessary

                      to establish criteria for determining when a pattern of violations

                      of mandatory health or safety standards exists.

           Thus, as evident by the italicized language, any rules are only as the Secretary deems necessary. With that power and discretion, one obvious option for the Secretary was that it could have been decided that no such rules were necessary.

The parameters which may constitute a Pattern of Violations

           As the Secretary has observed, the dictionary defines a “pattern” in a manner which is consistent with the common understanding of the word, by describing it as “a reliable sample of traits, acts, or other observable features characterizing an individual [] behavior [pattern] . . . .” In line with that sense, the Senate Committee spoke to that provision of the Mine Act, expressing that it would be shown where a mine has “‘an inspection history of recurrent violations’ or ‘continuing violations,’ and that a pattern would be ‘more than an isolated violation’ but not necessarily ‘a prescribed number of violations.’” Response at n. 2, citing S. Rep. No. 95-151, pp. 32-33. Thus, Congress identified one end of the spectrum, that a pattern is more than an isolated violation, but left it to the Secretary’s expertise to determine when more was needed to be done for enforcement than simply the routine process of identifying each violation, one by one, and then having each violation abated.

           That Congress decided to leave it to the Secretary to develop the parameters for a pattern is not simply surmise. Both the statutory provision itself and the legislative history make this clear. Regarding the latter, the same Senate Report expresses an intent for the Secretary to be afforded “broad discretion in establishing criteria for determining when a pattern of violations exists.” Response at 6, citing the same S. Rep. at 33. The Senate, rather than setting a number of conditions and requirements for the pattern tool to be employed, did the opposite. It noted that the criteria for identifying a pattern would “necessarily have to be broad enough to encompass the varied mining activities within the Act’s coverage.” Id. The Senate went further in explaining its design, stating that a pattern can be composed of violations of different standards and was certainly not limited to violations of particular standards. Although it acknowledged the obvious, that a pattern, by definition must be more than a single, isolated, violation, that did not mean that “a prescribed number of violations” had to occur, nor that the violations had to come from “predetermined” that is, previously identified, standards. Last, the Senate noted that, while a “pattern” represents something more than an isolated violation, it does not require some intent or state of mind on the part of the mine where a pattern is found to exist. Id. Thus, if the pattern is present, that is sufficient, even if no intentional disregard of safety or health concerns is evident. In short, with intent not a prerequisite, a number, as long as it is a number greater than one, potentially can be enough, dependent upon the circumstances, to establish a pattern.

           As the Secretary notes, from the Mine Act’s legislative history, the provision was intended to “provide an effective enforcement tool” in situations where the mine operator has demonstrated disregard for miners’ safety and health by having a pattern of violations. Its use was contemplated where a mine has permitted continued safety and health standard violations, and it has been concluded that simply abating violations as they occur is not doing the job, and that a next step is necessary to “restore the mine to effective safe and health conditions.” Response at 5, citing S. Rep. No. 95-181, pp. 32-33. (1977).

           Apart from whether the Secretary was obligated to promulgate a pattern regulation, the fact is that it did so, utilizing the notice and comment rulemaking procedures under the Administrative Procedure Act. This result of this process, appearing at 30 C.F.R. Part 104, begins by examining the compliance records of mines annually. Other factors, such as whether a mine has demonstrated a lack of good faith in correcting significant and substantial violations, the non 104(e) enforcement measures that have been applied, and whether the mine’s accident, injury or illness record reflects a serious problem with managing safety or health matters, are examined, together with any mitigating considerations. Where a mine is not ruled out after the initial screening, then a mine with recurring significant and substantial violations is evaluated by application of the pattern criteria. These are set forth at 30 C.F.R. § 104.3(a)(1)- (3). Again, the review works by determining, at that second stage, if the mine under review may be eliminated from a pattern designation. If a mine remains a subject of concern, the third phase is applied. In that posture, the mine is notified of MSHA’s concern and that it has been identified as having a potential pattern of violations issue. Even then, in what can only be described as an overabundance of due process, the mine is not faced with a section 104(e) enforcement action. Instead the mine has the opportunity: to examine the documents MSHA has relied upon to arrive at that stage of review; to provide additional information to the Agency; to request a conference with MSHA; and to launch a program to avoid such repeated significant and substantial violations. As the Secretary appropriately observes, Section 104(e)(1) does not require that these extraordinary lengths be taken before a notice under that provision can be issued. Thus, it is a great understatement on the Secretary’s part to describe the rulemaking as providing “ample notice” before issuance of the section 104(e)(1) notice. A mine operator is provided notice “writ large” under the rule and this occurs in the context of requiring the Secretary to provide only a notice that a pattern of violations exists. Again, that determination by the Secretary, that a mine has “a pattern of violations of mandatory health or safety standards,” requires making rules for establishing the criteria for determining when a pattern exists, only as the Secretary deems necessary. Section 104(e)(4).

           Even after the completion of all that process, more is provided, as the District Manager, upon concluding at the end of the day that a potential pattern exists, then sends a report concerning the evaluation to the applicable MSHA Administrator at which point the mine has yet another opportunity for comment. It is not until all that has transpired that the Administrator makes the decision whether the mine is to be issued a notice of a pattern of violations. 30 C.F.R. § 104.4(c). If there is a problem to be identified with the procedure developed by MSHA, it is that it is far too generous and prolonged. It is hard to imagine, given the Senate Report statements about this enhanced enforcement tool and the design for its use, that Congress intended such a protracted process.

           Moving from the established framework for determining whether to proceed with a pattern of violations to applying that procedure in the present case, the Secretary notes that it conducted such a screening for Bledsoe’s Abner Branch Rider Mine, examining a 12 month period which ended on August 31, 2010, and then, following the final rule’s procedure, informed Bledsoe there was a potential pattern. Bledsoe was advised at that time that 9 citations or orders pertaining to violations of 30 C.F.R. § 75.400, which had all become final orders were part of this matter. Meetings followed and Bledsoe, utilizing the Rule’s procedures, submitted a corrective action plan. That plan, again pursuant to the Rule, was evaluated by the District Manager, who advised the Respondent that he would be required to make a report to the Administrator and that occurred on March 18, 2011. Nearly four weeks later, on April 12, 2011, the Administrator for Coal Mine Safety and Health notified Bledsoe that he had determined the existence of a pattern of violations at the mine. The District Manager then issued, that same day, a Section 104(e)(1) notice, Number 8333606, which is the subject of this litigation.

           In arguing that Bledsoe’s arguments should be rejected, the Secretary first addresses the claims about inadequacy of the screening process, and its objections that the regulation does not “specify the time period of a mine’s compliance history that will be examined during the initial screening” and that it is not limited to considering only final orders in that initial screening process. The Secretary’s response is convincing, as it notes that Section 104(e) has no such requirement for a particular time period to be examined. The implicit suggestion, that MSHA should have selected a fixed time period, would have been arbitrary. The Secretary properly notes that the legislative history recognized that a one-size-fits-all approach would be jejune. Further, as this reasoned choice by the Secretary is not unreasonable, nor arbitrary or capricious, the deference principles articulated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) apply. Sec. Response at 23.

           In the same vein, the Secretary observes that the statutory provision is also silent on the issue of whether non-final citations and orders may be considered. The Secretary makes two key points on this issue:

                      Limiting pattern consideration to final orders would undermine

                      Section 104(e)'s effectiveness by eliminating consideration of current

                      or recent mine conditions and practices – precisely the matters that

                      are most relevant in determining whether the mine currently should be

                       considered for enhanced enforcement measures – and focusing

                      consideration instead on mine conditions and practices that are more

                      remote in time.

Sec. Response at 24-25.

           The Contestant’s position would severely hamper the enforcement tool that Section 104(e) surely is, as “citations and orders frequently do not become final until months or years after they are issued.” Id. at 24.

           Second, the Secretary aptly compares the pattern of violation application with the unwarrantable failure sequence of Section 104(d). This is not a stretch by any means, as the Senate Report itself made such a comparison, observing that the POV “sequence parallels the current unwarrantable failure sequence." S. Rep. No. 95-181, p. 33. Borrowing from that Senate Report, the Secretary notes that the comparison was expressly stated. Particularly pertinent here in that comparison is the point that “[i]t is beyond debate that a closure order under Section 104(d)(1) may be based upon a Section 104(d)(1) citation that is not final, and a closure order under Section 104(d)(2) may be based upon a Section 104(d)(1) order that is not final.” Id. at 25.

           Thus, the Court agrees with the Secretary’s point that, by Congress making such a comparison, it is reflective that POV determinations also need not be based upon final orders. Further, clearly, under a Chevron analysis, the Secretary’s decision to include non-final citations and orders, does not run counter to the statute, nor can it be characterized as arbitrary, unreasonable or capricious.

           Turning to Contestant’s claim that the POV Procedures Summary and Screening Criteria are “rule making through website” in violation of Section 104(e) of the Mine Act and the notice-and-comment provisions of the APA, the Secretary makes the same point that the Court noted earlier, namely that, “Section 104(e)(4) of the Mine Act does not ‘require[] the Secretary to use notice-and-comment rulemaking to establish POV criteria’ . . . . Section 104(e)(4) provides only that the Secretary ‘shall make such rules as he deems necessary’; it does not require any particular rule making procedure.” Id. at 26, referencing Contestant’s Motion at 11.

           The Secretary also makes note that, under the Administrative Procedure Act, rules may be valid even though not promulgated after notice under 5 U.S.C. § 553(b), and that, as “rules,” they are exempt from the APA's notice-and-comment provisions because such provisions “do not apply to ‘interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice [ ].’” Id. at 26-27.

           These two observations also make sense when placed in the context of the use for the “POV Procedures Summary and Screening Criteria.” That critical context is that the POV Procedures “describe the internal procedures MSHA personnel – and only those who answer to the Administrator – follow in reviewing mine violation histories under Section 104(e) of the Mine Act and Part 104; they pertain to the procedural aspects of the review of mine violation histories. They are not law; they do not bind the public.” Id. at 27. (emphasis added).

            Further, as the Secretary also notes, although the POV Procedures “may bind MSHA personnel to the extent personnel must follow supervisory direction, they do not bind the Administrator in any case. They address MSHA's conduct in reviewing mine violation histories in preparation for the Administrator's exercise of discretion regarding possible enforcement action; they do not address operator conduct. [Accordingly,] [t]hey help ‘direct the analysis [of whether the mine has a pattern of violations] but not necessarily the answer.’” Id. at 27. (emphasis added). The Secretary observes that this is consistent with “MSHA's Procedure Instruction Letter [which was] held exempt from notice-and-comment rule making in National Mining Ass'n. v. Secretary of Labor, 589 F.3d 1368, 1372 (11th Cir. 2009).” Similarly, the Secretary points out that “the POV Procedures Summary and Screening Criteria address ‘the general procedures District Managers are to consider’ in evaluating a mine's violation history under Section 104(e) of the Mine Act and Part 104; but the agency – the District Managers and ultimately the Administrator – is ‘free to consider individual facts' when evaluating each specific mine." (quoting Ryder Truck Lines, 716 F.2d at 1377).” Sec. Response at 27-28.

           Thus, the Court agrees with the Secretary that Part 104 informs the mining community of the pattern criteria used to identify a potential pattern of violations at a given mine and the procedures MSHA will follow upon making such identification, culminating in the Administrator’s decision as to whether a notice of a pattern of violations will be issued.

Drummond is not instructive.

           Bledsoe points to Secretary v. Drummond Company, Inc., 14 FMSHRC 661, 682 (May 1992) for authority in support of its inaccurate claim that “Section 104(e)(4) of the Mine Act directed the Secretary to make rules for determining when a pattern of violations exists . . . .” Motion at 8.

            Drummond challenged the Secretary's interim excessive-history civil penalty program and the Commission found that the program was inconsistent with and therefore modified the existing 30 C.F.R. Part 100 penalty regulations. However, as the Secretary correctly observes, “ nothing in the POV Procedures Summary or Screening Criteria is inconsistent with or modifies 30 C.F.R. Part 104 or any other regulation.” Id. at 30.

           The Court would add that the circumstances were very different in that case as Drummond focused exclusively on the penalty computation regulations which were in existence and formulated through the notice and comment process. Placed in context, in that litigation, the complaint was that penalties were being computed, not in accordance with Part 100 but rather upon the Secretary of Labor’s Program Policy Letter, which was a program established outside the notice and comment process of the Administrative Procedure Act. As the Commission expressed it, the challenge from the mine operators in Drummond was that the Secretary was failing to act within the framework of its own Part 100 regulations. Id. at *672.

           The Secretary’s action here would seem to fit within the APA definition of a “Rule,” but the present question is whether there is any deficiency in its application. There was, following the proposed rule, the opportunity for comment from the affected public. It is also true that the notice and comment process is not applicable where interpretive rules, general statements of policy, or rules of agency organization, procedure or practice are involved. 5 U.S.C. § 553 (b)(3)(A). While notice and comment is intended to accomplish public participation and fairness, here Congress’ expressed intent was to leave it to the Secretary’s discretion as to whether such rules were needed. In short, it was left to the Secretary, not the public, to ultimately decide the parameters of a pattern. Further, consistent with the conclusion that the pattern rule is a statement of policy, it clearly leaves the Agency, through the Administrator, with discretion in its decision making. In fact, it is the ultimate in that regard, as the Administrator, not the final rule, makes the final decision whether to proceed with a pattern notice.

           Regarding Bledsoe’s claim that there was retroactive rulemaking, the Secretary responds that the Pattern provision was promulgated decades before the notice of pattern issued here. The Court agrees that, by that rulemaking, Sections 104.2 (a)(1) and 104.3(a) gave Bledsoe notice of the parameters upon which a pattern could be formulated. Therefore, Bledsoe’s protestation that it was caught unaware of the effect of not challenging 26 of the citations which make up the 79 citations during the period from September 1, 2009 through August 31, 2010, rings hollow. There are two reasons for this: first, “Bledsoe was not entitled to know and the Secretary was not obligated to supply information about the internal procedures adopted to guide the agency's exercise of Section 104(e) enforcement discretion.” Second, and of significance, as a “pattern does not necessarily mean a prescribed number of violations , . . . Bledsoe had no reason to expect that it would ever know that a certain number of S&S violations would subject it to review for a potential pattern or pattern of violations.” Id. at 34-35.

           In sum, the Secretary reiterates that the POV Procedures Summary and Screening Criteria were not required to undergo notice and comment rulemaking. Instead, they serve as guidance for MSHA in the exercise of its discretionary enforcement authority and as such they are not binding on the public or the Administrator. Thus, the Secretary emphasizes that it sufficiently “informed the public through § 104.3(a) that a history of repeated S&S violations: (1) of a particular standard; (2) of standards related to the same hazard; or (3) caused by unwarrantable failure to comply, would identify it as a mine with a potential pattern of violations.” Sec. Response at 32. The Court agrees.  There is one aspect of Bledsoe’s argument with which the Court agrees, at least in theory. That is Bledsoe’s assertion that the “practical effect of a POV notice is that a mine is subject to closure every time an S & S citation is issued. [It notes that] [t]hese citations may be challenged by the operator; however there will still be a closure upon issuance. This allows the Secretary, based on nothing more than allegations, to repeatedly close a mine in perpetuity. In fact, even if all such citations are later vacated, the operator has no remedy to prevent such closures.” Bledsoe Motion at 8. In the Court’s view, this observation is really an argument in support of Bledsoe’s Response to the Secretary’s Motion to Dismiss for Lack of Jurisdiction. As noted at the outset of this Order, the Court has DENIED the Secretary’s Motion. See n.1, supra.

           For the foregoing reasons, Contestant Bledsoe’s Motion for Partial Summary Decision is DENIED. The parties are directed to contact the Court via its email address for the purpose of arranging a hearing date so that this matter can proceed forward.

SO ORDERED.  

                                                                                        /s/ William B. Moran

                                                                                        William B. Moran

                                                                                        Administrative Law Judge